R v. J.L.M.

NO.
1302A-00218 IN THE PROVINCIAL COURT OF NEWFOUNDLAND AND LABRADOR

2003 CanLII 48100 (NL PC)
BETWEEN: HER MAJESTY THE QUEEN AND: J. L. M. Heard: September 3rd 2003 Judgement: September 11th 2003
JUDGEMENT OF GORMAN, P.C. J. INTRODUCTION: [1] Mr. M. used his position of trust and authority as a Regimental Sergeant Major in the Royal Canadian Army Cadets, to sexually abuse four young cadets.1 He has plead guilty to five counts of sexual interference and six counts of sexual exploitation, contrary to sections 151and 153(a) and (b) of the Criminal Code of Canada, R.S.C. 1985. Seven of these offences occurred while M. was an adult and four of them while he was a young person within the definition of those words in the Young Offenders Act, R.S.C. 1985 and in the Youth Criminal Justice Act, The rank of Regimental Sergeant Major is the highest one that a cadet can reach. It involves a position of authority over all other cadets and it allowed M. to dispense both discipline and rewards.
1
2. S.C. 2002, C. 1. [2] Sadly, this type of offence is not a rare occurrence in Canada. Canadian children are subjected to such sexual abuse on a regular, consistent and continuos basis. This crime is committed against them in their homes, in their schools, at their playgrounds, in their churches, in their sports clubs and in organizations that they join, such as the one in this case, in order to find help and guidance in making the difficult transition from childhood to adulthood. Our response as a society is not one for which we should be proud. We continuously express our outrage at such offences but we do little in response. We provide little assistance to those who have been sexually assaulted and we give little consideration to the treatment, monitoring or long term control of those who commit such offences. As a result of this latter failure, we must accept a certain degree of responsibility for every sexual offence committed in the future by such individuals.2 [3] It has been said that the sentence imposed by a court reflects the court's view of the relative seriousness of an offence. If this is correct, then it might reasonably
Almost twenty years ago, the authors of an extensive study into the prevalence in Canada of sexual offences against children and youths described the prevalence of such offences in Canada at that time as an intolerable situation. It is one which must not be allowed to continue. Report of the Committee on Sexual Offences Against Children and Youths (the Badgley Report), 1984, Volume I, Page 29.
be
3. concluded by some, that some Canadian courts have not seen these type of offences as particularly serious. Simply put, the sentences imposed for offences involving the sexual abuse of children have been too low for too long.3 [4] The issue in this case however, is a much more narrower one: what is an appropriate sentence for this offender? For the reasons that will follow, I have concluded that M. should be sentenced to a period of two years incarceration less a single day. THE LEGISLATION [5] Sections 151 and 153(a),(b) and (2) of the Criminal Code of Canada state: 151. Every person who, for a sexual purpose, touches, directly or indirectly, In R. v. M.(G.) (1992), 77 C.C.C. (3d) 310 (Ont. C.A.), for instance, Madam Justice Abella said: The public can logically be expected to infer from the nature of the sentence the extent to which a court views as serious, certain conduct by a given individual. If the presence or absence of denunciation can be inferred from a sentence, then the debate over whether denunciation is a valid aspect -- as opposed to a valid objective -- of sentencing merges with the observation that one of the instructive messages the public is likely to take from a sentence it views as deterrent, is that it is also denunciatory. The converse proposition is equally true. Sentences which appear on their face to be exceptionally lenient in the circumstances can be presumed to generate neither deterrence nor denunciation.
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with a part of the body or with an object, any part of the body of a person under the age of fourteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence 4. punishable on summary conviction.4 153. (1) Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency and who (a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person, or (b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.5 (2) In this section, "young person" means a person fourteen years of age or more but under the age of eighteen years. [6] Section 150.1 of the Criminal Code states that the consent of a child to the participating in sexual activity with an adult does not constitute a defence to a charge under either section 151 or 152 of the Code. Subsection 150.1(2) sets out certain exceptions to this general rule. However, this rule is absolute if the accused
4
The Crown proceeded by way of indictment. The Crown proceeded by way of indictment.
is, as in this case, in a position of trust or authority towards the victim. Thus, Parliament has decided that it is a criminal offence for an adult to participate in
5. sexual activity with a child regardless of whether or not the child consents. Considering the vulnerability of children, particularly as regards those who are in positions of trust or authority in relation to them, this is designed to protect children from those who might seek to take advantage of them. This rationale has been judicially recognized on more than one occasion. [7] In R. v. Audet (1996), 106 C.C.C. (3d) 481, for instance, the Supreme Court of Canada pointed out that section 153 of the Criminal Code was passed by Parliament in response to the Badgley Committee's recommendations in a report made public a few years earlier. Therefore: It is evident that Parliament passed s. 153 of the Criminal Code to protect young persons who are in a vulnerable position towards certain persons because of an imbalance inherent in the nature of the relationship between them. This is merely stating the obvious, and it would not be helpful, nor is it necessary, for the purposes of this appeal to elaborate on the extent and scope of the social aspect of the problem. [8] In R. v. T.G.F. (1992), 55 O.A.C. 355 (C.A.), the purpose of section 153 was described in a similar fashion: The purpose of s. 153 is to make it clear that a person in a position of authority or trust towards a young person is not to engage in sexual activity
with that person, even though there is apparent consent... [9] In R. v. Hann (1992), 75 C.C.C. (3d) 355 (N.L.C.A.), the Court of Appeal described the purpose of section 153 of the Code by reference to the need to protect
6. young people: Needing no elaboration is the statement that our society for generations has dictated that persons of tender and youthful years require the protection from laws which assures that no excuse based upon the consent of a vulnerable mind can justify sexual invasions of their persons by adults. This is why the defence of consent is withheld from the adult offender in the circumstances of this case. To do otherwise would in a very real way jeopardize the life, liberty and security of young persons by denying to them the protection of the fundamental justice which the Charter is designed to assure.
THE CIRCUMSTANCES OF THE CHARGES The Background Facts: [10] The offences committed by M. occurred during the period of 2000-2001. These offences were committed in St. Johns, Corner Brook, Grand Falls-Windsor, on a bus trip to St. Johns and at Pinchgut Lake. [11] The investigation commenced after a fourteen year old cadet complained to Major Halfyard of the Corner Brook Cadets that M. had made inappropriate comments of a sexual nature to him and that sexual assaults may have occurred.
M. was subsequently interviewed and provided three statements admitting to his sexual involvement with the cadets in this case. [12] The informations charging M. with the various offences were sworn to in February, April and November of 2002. [13] The following list of charges provides an overview of the nature, time and
7. place of the offences committed by M: No. 1. 2. 3. 4. 5. 6. 7. 8. Victim: Offence: T.B. T.B. T.B. T.B. S.G. T.B. T.B. J.F. 151 153(a) 153(b) 153(a) 151 153(a) 153(a) 153(a) Date: March 1-31, 2000 May 1-31, 2000 May 1-31, 2000 June 1-30, 2000 May 11, 2001 May 11, 2001 May 11-14, 2001 May 25-26, 2001 Statute: Y.O.A. Y.O.A. Y.O.A. Y.O.A. C.C.C. C.C.C. C.C.C. C.C.C. Location: Corner Brook Corner Brook Corner Brook Corner Brook St. Johns St. Johns St. Johns Grand FallsWindsor Grand FallsWindsor Grand Falls-
9.
S.E.
151
May 25-26, 2001
C.C.C.
10.
S.G.
151
May 25-26, 2001
C.C.C.
Windsor 11. S.E. 151 June 10, 2001 C.C.C. Pinchgut Lake
The Sequence Of Events Leading Up To Today: [14] On June 11th 2002, M. elected to be tried by a judge sitting alone. A preliminary inquiry was conducted and on November 22nd 2002 he was committed to stand trial in relation to the present charges he faces as an adult. On March 13th
8. 2003, he chose to re-elect to be tried in the Provincial Court in relation to the charges listed above and identified as Criminal Code violations. Pleas of guilty to these offences were entered on the same day and a pre-sentence report requested. [15] In relation to the charges laid against M. pursuant to the provisions of the Young Offenders Act, he entered pleas of not guilty to these on November 14th 2002. On March 13th 2003, he changed his pleas to guilty in relation to these offences. THE CIRCUMSTANCES OF THE OFFENCES THE START: [16] In March of 2000, M. was at an adult friends residence. T.B. was also present. He would have been thirteen years of age at the time. A pornographic movie was placed into a videocassette player by M.s adult friend and he and M.
began to masturbate and perform fellatio upon each other. M. then masturbated T.B. and performed fellatio upon him as well (no. 1). AT M.S RESIDENCE: [17] In May of 2000, T.B. went to M.s residence to receive help with the polishing of his cadets boots for an upcoming inspection parade. While they were polishing these boots in M.s bedroom, M. and T.B. began to masturbate each other. The
9. sexual activity then proceeded to M. performing fellatio upon T.B. and T.B. then performing fellatio upon M. (no. 2). AT THE CORNER BROOK CADET ARMORY: [18] In May of 2000, M. performed fellatio upon T.B. and T.B. performed fellatio upon M. in a bathroom stall at the Cadet Armory in Corner Brook (no. 3). [19] In June of 2000, T.B. and M. were in the sleeping quarters at the Corner Brook Armory with a number of other persons. While everyone else was asleep, M. approached T.B. and performed fellatio upon him (no. 4). THE BUS TRIP: [20] On May 11th 2001, while on a cadet bus trip to St. Johns that he was supervising, M. committed offences in relation to T.B. and S.G. S.G. was twelve
years of age at the time. [21] M. was sitting with the two young cadets at the back of the bus. He and T.B. were fondling each other. S.G. then exchanged seats with T.B. and M. began to masturbate him. M. then asked S.G. to touch him. S.G. briefly did so (nos. 5 and 6). AT THE CABOT NAVAL CADET COMPLEX IN ST. JOHNS: [22] Between May 11-14th of 2001, a trip to the cadet complex in St. Johns
10. occurred. During this visit, while M. was making his rounds to ensure that all of his cadets were asleep, he touched T.B.s penis with his hand on the outside of T.B.s clothes. At the time, T.B. was awake and was talking to another cadet (no. 7). AT THE GRAND FALLS-WINDSOR CADET ARMORY: [23] On May 25th 2001, the Corner Brook Cadets traveled to the Cadet Armory in Grand Falls-Windsor for an overnight visit. That night, M., S.G., S.E., who was thirteen years of age at the time, and J.F.,who was twelve years of age, were all in the same sleeping area at the Armory. They were all in their sleeping bags but they were awake and talking. M. masturbated S.G. He then moved over to where S.E. was and masturbated him as well. After this was completed, M. moved over to
where J.F. was sleeping. This time, he masturbated and performed fellatio upon J.F. (nos. 8, 9 and 10). AT PINCHGUT LAKE: [24] On June 10th 2001, the cadet group went on a visit to Pinchgut Lake. M. and S.E. went down to the river. M. masturbated S.E. and performed fellatio upon him (no. 11). SUMMARY OF THE OFFENCES [25] The offences committed by M. must not be confused with consensual sexual activity between two teenagers. M. was a young person and a young adult when
11. he committed these offences. However, in relative terms he was much older than his victims. In addition, he held a position of trust, power and authority in relation to them. These offences must be characterized as involving serious child sexual abuse. [26] It is clear that M. had access to having consensual sexual activity with an adult. However, over an extended period of time, while acting in his capacity as an authority figure, he committed numerous sexual offences in relation to four young cadets of similar ages. The evidence convinces me that M. is sexually attracted to young boys. It is not a coincidence that all of his victims were of a similar age and
sex, nor is it a coincidence that he committed these offences in relation to young boys that he held a position of authority over and while exercising that position.
THE OFFENDER [27] M. is twenty-one years of age. He is single. He has no previous convictions. His family is supportive of him. He is attending school and he is employed parttime as a short order cook. [28] When asked if he wished to say anything prior to sentence being imposed, M. replied that he did not wish to do so.
12. THE PRE-SENTENCE REPORT [29] The pre-sentence report contains a number of positive elements. However, it also indicates that M.avers strongly that the sexual contacts he had with these victims was consensual in every instance. He frames this sexual behaviour in terms of his own experience as a young adolescent-that this was typical sexual exploration. Mr. [M.] feels that none of his victims were harmed nor are they apt to experience any feelings of victimization or other long-term impact. [30] Considering the differences in age between M. and his victims and
considering the power imbalance involved between them, this is a worrisome statement. The author of the pre-sentence report points out: Mr. [M.] is resistant to insight at this time. He does not feel that his age difference; his position of trust and authority to the victims as it existed within the cadet corps or his greater physical stature were aggravating or coercive factors. Mr. [M.] can appreciate that his behaviour would be perceived as predatory by others but he denies that it was. He feels that his sexual affinity to underage males as opposed to age appropriate and adult males was an indication of his emotional immaturity as opposed to any paedophilic proclivity. [31] The author of the pre-sentence report concludes: The nature; number and prolonged time period of the sexual offences that Mr. [M.] has committed; his entrenched rationalization/justification and the profile of his victim group indicate that he may be a homosexual paedophile who is a risk to re-offend. Mr. [M.] is apt to be receptive and cooperative with receptive programs. However, there are no specialized assessment centres or programs available to him at Corner Brook. Mr. [M.] would not fall into the 13. mandate of the John Howard Societys Community-based Intervention Program at Corner Brook. That service provides educational/low intensity programs for sex offenders whereas Mr. [M.] would require more in depth assessment and treatment. VICTIM IMPACT STATEMENTS [32] Victim impact statements are designed to provide victims of crime with a genuine opportunity to have involvement in the sentencing process. It enables victims to advise judges of the real effects of criminal offences. In this regard, they are invaluable. They are cogent and often eloquent reminders that criminal
offences are not committed in a vacuum. They can impact peoples lives in a dramatic and sometimes in a devastating fashion. As pointed out by Julian Roberts, such statements are valuable because they promote the idea that although crimes are committed against the state, and the judicial process involves a bipartite proceeding, crimes are also committed against individual citizens.6 [33] In this case, none of the victims have filed victim impact statements. What is the Court to make of this? Obviously the Court cannot assume that there has been any particular impact. However, the absence of victim impact statements should not be confused with an absence of victim impact.
14. [34] It is not uncommon for child victims to suffer extensive long term negative effects from these type of offences. Therefore, the concentration upon actual victim impact, though useful to remind courts of the seriousness of certain offences, is often misplaced. The consequences for victims is a particularly individualized phenomenon. An offender who happens to select a victim who eventually suffers little impact surely cannot plead such an eventuality in mitigation of sentence. In my view, the placing of a child in the position where
Victim Impact Statements and the Sentencing Process: Recent Developments and Research Findings (2003), 47 C.L.Q. 365, at page 372.
long term harm may result, whether or not it does, is in and by itself a very aggravating factor. THE POSITIONS OF THE PARTIES THE CROWN: [35] The Crown submits that a period of eighteen to twenty-four months (less a day) incarceration should be imposed upon M. Ms. Duffy refers to the position of trust and authority held by M., his lack of remorse and the need to stress specific and general deterrence. She submits that M. constitutes a danger to the public and that a conditional period of imprisonment would be inconsistent with the fundamental principles of sentencing. M.: [36] Mr. Perry, on behalf of M., expressed his agreement with the range of sentence suggested by the Crown. However, he argues that M. is not a danger to
15. the public and that this is an appropriate case for the imposition of a period of imprisonment to be served in the community. [37] Mr. Perry referred to M.s pleas of guilty, his young age, his statements to the police and his cooperation with the investigators. He also submits that the offences did not involve any acts of violence or coercion, that M. did not force or coerce the
cadets into participating in sexual activity with him and that their participation was completely consensual. He argues that these constitute strong factors in mitigation of sentence. Do they? A CHILDS CONSENT AS A MITIGATING FACTOR [38] As a society, we have absolutely rejected the proposition that children can properly consent to participating in sexual activity with adults or with those whom are in positions of trust or authority in relation to them. Parliaments enacting of sections 150.1 and 153 of the Criminal Code forcefully illustrates this point. Children simply cannot be placed in a position in which they have sexual contact with people in the type of position that M. held. The heading to section 153 properly describes it as an offence involving sexual exploitation.7 It must be remembered that these offences did not involve M. having sexual contact with
16. children he met on the street or even with the victims in a situation in which he was not directly supervising them. All of his victims were in a vulnerable position in relation to him because of the authority he could and did exercise over them. These offences do not require the use of threats or violence because of the power
For an analysis of how headings can be considered in interpreting statutes, see R. v. Davis, [1999] 3 S.C.R. 759.
imbalance involved. There is a degree of silent coercion that should not be underestimated. This does not mean that M. should receive the same sentence as someone who forcefully sexually assaults a child. But, it does mean that overemphasizing a childs consent constitutes a failure to appreciate the real meaning of that word. Doing so would also have the effect of defeating the essential purpose of these provisions and it would fail to recognize the vulnerable position of children involved in quasi-military organizations such as the one in this case. THE CRIMINAL CODE OF CANADAS SENTENCING PROVISIONS [39] Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to contribute...to respect for the law and the maintenance of a just, peaceful, and safe society. This is to be achieved by imposing sentences which have, among others, the following objectives: - denouncing unlawful conduct;
17. - general deterrence; - rehabilitation; and - the promoting of a sense of responsibility in offenders, and
acknowledgement of the harm done to victims and the community. [40] Section 718.2(d) states that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances and section 718.2(e) states that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. Section 718.2(b) indicates that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [41] Subsection 718.2(a)(iii) specifically refers to abuse of a position of trust or authority in relation to the victim as being an aggravating factor in the imposition of sentence: A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, 18. shall be deemed to be aggravating circumstances. [42] Finally, section 718.1 of the Criminal Code states that any sentence imposed
must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is the fundamental principle of sentencing in Canada. But what does it mean? PROPORTIONALITY [43] In R. v. Martineau (1990), 58 C.C.C. (3d) 353 (S.C.C.), it was held that punishment must be proportionate to the moral blameworthiness of the offender and that those causing harm intentionally [should] be punished more severely than those causing harm unintentionally (at page 360). [44] In Reference re: Section 94(2) Motor Vehicle Act, [1985] 2 S.C.R. 486, Wilson J. stated: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a fit sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender deserved the punishment he received and feel a confidence in the fairness and rationality of the system. DENUNCIATION [45] As noted earlier, section 718 of the Criminal Code specifically refers to denunciation as being one of the objectives of the sentencing process in Canada. So then, how is this principle to be applied? 19. [46] In R. v. M.(C.A.) (1996), 105 C.C.C. (3d) 327, the Supreme Court of Canada considered the sentencing principle of denunciation. The Court explained this
principle by contrasting it with retribution. At page 369, the Court stated: Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate societys condemnation of that particular offenders conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offenders conduct should be punished for encroaching on our societys basic code of values as enshrined within our substantive criminal law. [47] In R. v. Latimer (2001), 150 C.C.C. (3d) 129, the Supreme Court of Canada, considered this sentencing principle again. This time, in very forceful language the Court stated that: ...denunciation becomes much more important in the consideration of sentencing in cases where there is a high degree of planning and premeditation, and where the offence and its consequences are highly publicized, [so that] like-minded individuals may well be deterred by severe sentences: R. v. Mulvahill and Snelgrove (1993), 21 B.C.A.C. 296, at p. 300. This is particularly so where the victim is a vulnerable person with respect to age, disability, or other similar factors. [48] Children are among our societys most vulnerable members. They are easily victimized. Therefore, general deterrence, denunciation and retribution must be the prime considerations in imposing sentence upon those who sexually abuse them. What then of the sentencing principle of retribution?
20. RETRIBUTION [49] In M.(C.A.), the Supreme Court of Canada stated that retribution is an
accepted, and indeed important, principle of sentencing in our criminal law. The Court, at page 367, described why retribution is an important principle of sentencing by stating that: Retribution, as an objective of sentencing, represents nothing less than the hallowed principle that criminal punishment, in addition to advancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability of the offender. [50] It has been pointed out on many occasions that vengeance has no role in the Canadian sentencing process. However, the Supreme Court of Canada points out in M.(C.A.) that the distinction between vengeance and retribution is one that has been commonly confused. The Court concluded that retribution represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender... [51] Our courts must send a clear message to every person in a position of authority over a child that sexual contact with them will not be tolerated and will result in lengthy periods of imprisonment being imposed. General deterrence, if it is going to be given a chance to operate, requires consistency.
21.
THE OBJECTIVES OF SENTENCING [52] The objectives of sentencing require that a combination of these principles be applied because as the Supreme Court of Canada points out in M(C.A.), our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct...our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. [53] In R. v. Stone (1999), 134 C.C.C. (3d) 353, the Supreme Court of Canada, at paragraph 239, in considering the objectives of the sentencing process, took the opportunity to stress the importance of Canadian judges bringing these principles into harmony with prevailing social values: It is incumbent on the judiciary to bring the law into harmony with prevailing social values. This is also true with regard to sentencing. To this end, in M. (C.A.), supra, Lamer C.J. stated, at para. 81: The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. . . . Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all
22. Canadians as expressed by the Criminal Code. This Court's jurisprudence also indicates that the law must evolve to reflect changing social values regarding the status between men and women; see Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Seaboyer, [1991] 2 S.C.R. 577. [54] If our sentencing process is designed to promote our basic and shared sense of values as a society, then surely one of our most basic and shared values is that children should be absolutely free from sexual abuse and sexual involvement with adults at certain ages of their lives. Therefore, the sentences imposed for such offences must reflect the serious nature of such offences and the fact that they violate our most cherished values. It is not sufficient for a Court to simply state that such offences are serious and deserving of significant punishment. The actual sentences imposed must reflect this fact. [55] While rehabilitation of the offender can never be overlooked, the paramount consideration for a sentencing court in cases such as this one must be that of deterrence, both general and specific (see R. v. Sacrey (1985), 54 Nfld. & P.E.I.R. 249 (N.L.C.A.) and R. v. G.S.T. (1992), 95 Nfld. & P.E.I.R. 129 (N.L.C.A.). The public interest in deterrence and marking the seriousness of these offences has to take priority over considerations personal to the offender (see Re Curran, [2003] NICA 19, at paragraph 25).
23. ANALYSIS [56] In R. v. Atkins (1988), 69 Nfld. & P.E.I.R. 99 (N.L.C.A.), the Court of Appeal set out a number of factors which a sentencing court might consider when dealing with sexual assault offences. The Court of Appeal clearly indicates however, that this list is not meant to be exhaustive and that sentencing must always remain a process that concentrates on the particular offender and offence. A consideration of the factors suggested in Atkins follows. (i) the extent of the assaults: [57] The sexual offences that occurred in this case involved significant sexual activity. They went well beyond what is sometimes referred to as mere fondling. (ii) the degree of violence or force used: [58] These offences did not involve the use of physical force or violence beyond that involved in the definition of the offences. This is a factor however, better suited for analysis of sexual assaults upon adults. One of the many factors which makes children vulnerable to sexual abuse, particularly by those who hold positions of power over them, is that force is not required for the offence to be committed. [59] The degree of force used can be an important factor in determining the seriousness of assault offences as can be the extent of the sexual violation
24. committed in sexual offences. However, when the victim of a sexual offence is a child, a court must be careful not to overemphasize the lack of force, violence, or the degree of sexual violation that occurred. What is sometimes referred to as a minor sexual assault can have devastating long term effects upon children and violence is often not required for such offences to be successfully committed against them. This is particularly so when the offender is an adult that is in a position of trust or authority in relation to them. This point was forcefully made by Madam Justice Abella in M(G.): Nor do I accept that the absence of tangible violence makes the offence less worthy of censure, since in my view "the offence of sexual assault is an inherently violent crime": R. v. Khan, a decision of the Ontario Court (General Division), released June 5, 1991, per Moldaver J. at p. 4. There is no doubt, however, that there are escalating degrees of violence and that these degrees are undoubtedly relevant as aggravating factors where they exist. Nor, in my view, do threats have to be articulated for a situation such as this to be deemed threatening. The dimensional harm of this offence when it occurs between parent and child is in its exploitation of the trust the child is entitled to place in a person upon whom she is dependent. While the conduct may often be explained by reference either to personal or social pathologies, it cannot ever be, or be seen to be, excused. The child is always, by virtue of the power imbalance inherent in his or her status as a child, in a more vulnerable position than the parent. In Norberg v. Wynrib, a decision of the Supreme Court of Canada, released June 18, 1992 [now reported [1992] 2 S.C.R. 226, 92 D.L.R. (4th) 449], La Forest J. at p. 23 cites with approval the observations of one writer who refers to relationships where there is the capacity to "dominate and influence" as "power dependency" relationships [at p. 255 S.C.R., p. 463 D.L.R.]:
25. Professor Coleman outlines a number of situations which she calls "power dependency" relationships; see Coleman, "Sex in Power Dependency Relationships: Taking Unfair Advantage of the `Fair' Sex", 53 Alb. L. Rev. 95. Included in these relationships are parent-child, psychotherapist-patient, physician-patient, clergy-penitent, professor-student, attorney-client, and employer-employee. She asserts that "consent" to a sexual relationship in such relationships is inherently suspect. (See also the opinion in Norberg of McLachlin J., who discusses such power imbalances and the duty they create at pp. 6-8 [pp. 271-74 S.C.R., pp. 486-88 D.L.R.].) If consent is inherently suspect in these relationships, then while degrees of violence or threats may undoubtedly be considered as more or less aggravating factors in sentencing, it does not necessarily follow that their absence operates to reduce the seriousness of the offence. The status of parent-child, the dependency and vulnerability which flow from that status, and the trust the child is entitled to presume, all underscore that the relationship between parents and their children is a fiduciary one. The trust is offended no less when exploited in what appears otherwise to be a warm relationship between father and daughter, where the love a child feels for her father may generate acquiescence on her part without his subjecting her to additional physical or verbal victimization. It may even be seen, as it was by these two victims, as a greater and more traumatic invasion of their trust when it comes from a loved parent whom they are anxious to please. (iii) the impact upon the victims: [60] This has already been referred to. Long after any sentence imposed upon M. is completed, these children and their famalies may or may not be impacted by these offences. No doubt the families of the victims in this case will worry about any signs that may be suggestive of impact. They will never be certain if their
childs
26. behaviour is a manifestation of the impact of the offence or whether it is simply a sign of their child growing up. For the families of these victims, this is now a part of their daily lives. [61] In addition, these types of offences have a societal impact. They make it harder for such organizations to be trusted and for them to recruit individuals who are actually concerned about the welfare of children. They leave parents frightened and wondering whether or not they should ever allow their children to join such organizations. (iv) the impact upon the offender: [62] There is no evidence of any particular impact upon M., beyond that which occurs on every occasion that a person is convicted of such offences. (v) the degree of trust involved: [63] These offences involve a significant and ongoing breach of trust by M. The victims were placed in his care and under his control and authority because they and their families trusted him. (vi) public abhorrence to the type of crime involved: [64] The degree of public abhorrence of this type of offence is greater than it is for
virtually any other offence. This is particularly so when there are numerous victims and a breach of trust involved. 27. (vii) the offender's plea, attitude toward the offence and any biological or psychiatric factors that led to the commission of the offence: [65] M. has entered pleas of guilty, though after a preliminary inquiry and after each of the victims testified. He has not publicly apologized for his actions nor expressed any remorse. [66] There is no evidence that his actions were the result of any biological or psychiatric condition. He committed these offences not out of compulsion but desire. In other words, he placed his own sexual satisfaction ahead of the interests of children to whom he occupied a position of trust, responsibility and authority. (viii) the need for specific and general deterrence: [67] General deterrence and protection of the public are the most important sentencing principles to be applied in sentencing offenders whom commit sexual offences involving children. (ix) the antecedents of the offender and the prospects for rehabilitation: [68] M. has very positive antecedents. Counselling is always uncertain but his prosects for rehabilitation appear relatively positive, except for his failure or refusal to understand the serious consequences his actions can have upon children.
[69] These factors and others have been considered by other courts on numerous occasions. 28. OTHER SENTENCING JUDGEMENTS [70] A consideration of sentencing judgements in cases similar to this one, which have been filed over the last twenty years, illustrates that it is very difficult to elucidate from them any coherent series of principles that can be applied in determining what sentence is to be imposed in a given case. However, as will be seen, some general principles of application can be distilled. [71] In R. v. Kenny (1992), 95 Nfld. & P.E.I.R. 131(N.L.S.C.), the accused was convicted of seven counts of indecent assault upon males contrary to section 156 of the Criminal Code of Canada, R.S.C. 1970. The victims were young boys who resided at the Mount Cashel Orphanage. The accused was the superintendent of the institution. The nature of the offences were described by the trial judge as follows: Kenny indecently assaulted J.L. in twelve different locations, ten within Mount Cashel, one in a cabin at Colliers and one in a field near Gallow's Cove. The assaults included kissing J.L. on the face, inserting his tongue in J.L.'s mouth and having J.L. bite on the tongue, a reciprocal biting on J.L.'s tongue, fondling J.L. in the area of his groin and his buttocks both inside and outside the clothing, and rubbing Kenny's penis against J.L.'s penis and buttocks outside the clothing. The assaults occurred between September, 1971 and December, 1975 when J.L. would have been between 11 and 15 years old.
29. unclothed, and placing Kenny's penis between S.E.'s legs, when both were unclothed. The assaults occurred between April, 1973 and December, 1975 when S.E. was between 7 and 9 years old. Kenny indecently assaulted R.C. on a bench in the dressing room of the Mount Cashel pool by holding R.C. between his legs, putting Kenny's tongue in R.C.'s mouth, asking R.C. to bite on Kenny's tongue, and by rubbing the outside of R.C.'s thigh as well as biting on R.C.'s neck. There were two incidents between September, 1971 and December, 1975 when R.C. was between 8 and 12 years old. Kenny indecently assaulted G.C. in his office at Mount Cashel, on a bench at the Mount Cashel pool, and in a field near Torbay. The assaults included Kenny kissing G.C. on the mouth, Kenny putting his tongue in G.C.'s mouth and having G.C. bite on Kenny's tongue, Kenny biting on G.C.'s tongue, Kenny fondling G.C.'s penis, and Kenny lying on a blanket, holding G.C. on top of him while both were wearing only shorts, holding G.C.'s backside, pressing their groins together, and making a grinding motion with Kenny's hips. The assaults occurred between September, 1971 and December, 1975 when G.C. was between 7 and 11 years old. Kenny indecently assaulted J.G. in the Reading Room at Mount Cashel. The assault included Kenny fondling J.G.'s genitals inside his clothing and trying to put his fingers into J.G.'s rectum. The assault occurred in 1975 when J.G. was approximately 14 years old. Kenny indecently assaulted G.P. in Kenny's office at Mount Cashel and in the Reading Room. The assaults included Kenny sitting G.P. on his lap, fondling G.P.'s penis and backside inside his clothing, kissing G.P. on the mouth while having G.P. bite Kenny's tongue and Kenny biting G.P.'s tongue, and holding G.P.'s body against his and rubbing G.P.'s groin area
Kenny indecently assaulted S.E. in a clothing storeroom and in the Reading Room at Mount Cashel and in a field near St. John's. The assaults included fondling S.E. in the groin area, having S.E. place his hand on Kenny's penis, placing S.E.'s body on top of Kenny's while lying down and rubbing S.E.'s groin against Kenny's groin while Kenny was wearing shorts and S.E. was
against Kenny's. The assaults occurred between February, 1973 and December, 1975 when G.P. was between 11 and 14 years old.
Douglas Kenny indecently assaulted J.M. in the television room of Mount Cashel. The indecent assault consisted of Kenny's rubbing his groin area into J.M.'s lower back area for a period of approximately ten minutes while J.M. 30. was resisting. Kenny had an erection at the time and was making pelvic movements with his groin towards J.M.'s lower back area. The assault occurred between 1971 and 1972 when J.M. was 13 or 14 years old. [72] The trial judge imposed a period of five years imprisonment. In doing so, he referred to the lack of violence involved in the offences and to there having been no physical harm caused to the victims. [73] An appeal was taken to the Court of Appeal [(1994), 126 Nfld. & P.E.I.R. 199]. The Court of Appeal increased the sentence imposed by the trial judge to one of seven years imprisonment. The Court concluded that the sentence imposed by the trial judge was inordinately low. [74] In R. v. Taylor (1995), 134 Nfld. & P.E.I.R. 181(N.L.S.C.), the accused had been employed as a supervisor at the Newfoundland School For The Deaf. He was convicted of indecently assaulting four female students of the school in the following manner: Indecent assault upon A.W. on one occasion between August 23, 1969 and August 26, 1972. The relevant passages from the Agreed Statement of Facts are:
31. between fourteen and sixteen years old she recalls being on a C.N. bus where Mr. Taylor was one of the supervisors. She was seated near the back of the bus in an aisle seat. Mr. Taylor was seated next to her in the window seat. Her coat was spread over both their legs. Mr. Taylor placed his hand inside her pants and touched her vagina. He left it there for a short time then she got up and moved to a different seat on the bus. No further incident happened on this trip or any other trip with Mr. Taylor." Indecent assault upon N.W. on one occasion between September 1, 1976 and June 30, 1977. The Agreed Statement of Facts describes the assault in the following two paragraphs: "She was a student at the Newfoundland School for the Deaf between the ages of twelve and fifteen. During this time her family lived in .... while she lived in residence at the school. When she was approximately fourteen years old she recalls a movie was being shown for the students in the dining room of the school. It was in the evening and a large number of students were present. Mr. Taylor, who was responsible for showing the movie, invited her to sit next to him to watch how the projector worked. About half an hour into the movie N.W., who was sitting to Mr. Taylor's left, felt his fingers coming over her left shoulder, move under her blouse and bra and touch and fondle her breast. She got up told him to stop. Then she joined the other students where she watched the remainder of the movie. No further incident occurred between her and Mr. Taylor." Indecent assault upon L.H. between November 30, 1973 and November 29,
"A.W. attended the Newfoundland School for the Deaf between approximately ages eight and twenty. Living in .... at that time she stayed in the school's dormitory during the school year, returning home for summer and Christmas vacations. When going to and from school students travelled on a Canadian National Roadcrusier (C.N. Bus) accompanied by one or more supervisors from the school. Mr. Taylor sometimes was a supervisor on these bus trips. When A.W. was
1975. L.H. was a resident of the School between the ages of seven and eighteen. She had occasion to visit his home when the following occurred:
"After arriving at Mr. Taylor's house, they sat in the kitchen and he asked her if she wanted to watch a movie. He suggested a sex movie to which she agreed out of curiosity. They sat at the kitchen table and the movie "Deep Throat" was shown on the refrigerator door. A short time later Mr. Taylor got up and appeared to be going to the counter for a glass of water. Instead he moved behind L.H. and put his hand 32. inside her clothing and touched her breast. Then he put his hand inside her pants and touched her vagina. He rubbed his hand back and forth until she told him to stop. Shortly thereafter her sister came to the door and he hid the projector in a closet. She left with her sister but did not tell her what happened." Indecent assault upon S.W. between March 28, 1965 and March 27, 1967. S.W. was resident at the School from the ages of ten to fifteen when the following occurred: "When she was approximately eleven or twelve years old she was in the residence laundry room when Mr. Taylor entered. He placed his hand inside her top but outside her bra and rubbed her breast. After a few seconds she ran away and returned to her room. No further incident occurred between her and Mr. Taylor." [75] The accused was sentenced to a period of three months imprisonment on each charge to be served on a concurrent basis. The fact that the accused was deaf and the difficulties that this might cause him in prison, appears to have been seen by the trial judge as a significant factor and one which led to a sentence being imposed which on its face, appears to be quite low for such a serious breach of
trust. [76] On appeal, this time the Court of Appeal affirmed the sentence imposed [(1995), 135 Nfld. & P.E.I.R. 215]. In a brief judgement, the Court stated (at paragraph 6): In our view, the sentencing judge carefully considered and applied the relevant principles of sentencing and imposed a sentence which was appropriate in all the circumstances. [77] In R. v. Ruby (1986), 60 Nfld. & P.E.I.R. 120 (N.L.C.A.), the accused was
33. convicted of the offence of buggery in relation to a sixteen year old boy. The victim had consented to the activities and he had only reported the assault to the police after the accused had asked him to leave his residence. The Court of Appeal held that the three year sentence imposed by the trial judge was too severe and they reduced it to fifteen months. In doing so, they stated: Notwithstanding all of this, the trial judge sentenced Ruby to three years imprisonment. In my view, even though Ruby was a repeat offender, the sentence is too severe. We are not here dealing with a homosexual who enticed or forced a young person of good character to have anal sex with him. In such circumstances the Court would be justified in imposing a very severe sentence. It is obvious from the remarks of the trial judge that he was so overwhelmed by his own feelings of repulsion of this type of conduct that he failed to give sufficient weight to certain objective standards, such as the victim's consent,
[78] In R. v. Roach (1987), 3 Y.R. 57 (S.C.), the accused plead guilty to five counts of sexual assault upon young males who ranged in ages from five to nineteen years. The offences took place over a ten year period. The assaults involved fondling. The offender was in a position of trust. He had expressed remorse and publicly apologized to the victims. He was sentenced to a period of imprisonment
34. of two years to be followed by probation for a period of three years. The trial judge had concluded that a longer gaol sentence would express society's denunciation of this repugnant behaviour more forcefully. However, such a sentence was not imposed because it would not have allowed for a period of probation to be imposed. [79] In R. v. Green (1987), 63 Nfld. & P.E.I.R. 229 (N.L.S.C.), the accused was sentenced to a period of two years imprisonment for sexually assaulting a
the evidence of Dr. Paulse in respect of the effect of a long sentence, the lack of damage to the victim, in sentencing the offender. True this type of conduct cannot be condoned but rather must be strongly deprecated, particularly in the case of second offenders. However, on the facts of the present case, the repulsion which society manifests for this type of unacceptable conduct and any deterrent effect, either specific or general, can be sufficiently taken care of by a shorter custodial term than that imposed at trial.
neighbours eleven year old boy approximately ten to fifteen times over eleven months by acts of mutual masturbation. In imposing this sentence, the trial judge stated that he viewed, with the gravest disquietude, the alarming increase in the number of cases of this kind coming before our courts. It is incumbent upon this court, through the sentence it imposes, to indicate the revulsion of society toward this kind of case. [80] In R. v. Greening (1987), 68 Nfld. & P.E.I.R. 201 (N.L.C.A.), the Court of Appeal upheld a sentence of sixteen months imprisonment that had been imposed upon a teacher for having sexually assaulted young boys who attended the elementary school in which he taught. The children were between the ages of nine and thirteen years. The offences took place on several occasions and in the more serious cases, the general routine was that the boys would be invited to the appellant's home for assistance in school projects, etc. After a bond of friendship
35. had been formed, there was physical contact. It usually started with kissing on the cheek followed by touching of the boys' genital area outside and then inside their clothes. In some instances, there was removal of pants and underclothes and fondling of the boys genitals. In one case, the appellant exposed his own penis and masturbated.
[81] In R. v. Johnson (1992), 206 Nfld. & P.E.I.R. 185 (N.L.S.C.), the accused was convicted of having sexual intercourse with a young boy who was under the age of fourteen years. The trial judge described the circumstances of how the offence occurred by writing: Johnson was born on February 21, 1979. In October 1999 she was living in St. John's with her two children. On October 31 of that year she went to Whitbourne to spend a weekend with a family whom she had met through her boyfriend. The eldest child in that family was a teenage boy who was a close friend of the complainant's. Johnson and the complainant had not met before that weekend. A detailed recitation of the events of that day are unnecessary. There was a limited amount of social interaction between Johnson and the complainant in the kitchen of the host family in Whitbourne when others were present. After the complainant left Johnson made some comments respecting the complainant to the friend with whom she was staying but she did not make any direct inquiries concerning his age. She was aware that her friend's son, the complainant, and their friends would be going trick or treating that evening. Early in the evening Johnson purchased condoms and later offered the complainant a ride home when she encountered him, as expected, on a community road. She did not proceed directly to his house but instead drove to a secluded location in a nearby community in Trinity Bay, several miles away. At that location Johnson initiated sexual contact between them, 36. culminating in sexual intercourse. [82] The trial judge imposed a period of incarceration of one year. This judgement illustrates that even in those cases where the accused is not in a position of trust or authority that significant periods of incarceration will be imposed for offences involving sexual involvement with children, even if it was consensual.
[83] The judgement in R. v. Forde, [1992] O.J. No. 1698 (O.C.J. Gen. Div.), is another illustration of this principle though this time in relation to an offender who was in a position of trust and authority. [84] In Forde, the offender, a teacher, was convicted of two offences contrary to section 153(1)(a) of the Criminal Code. The offences occurred after he had developed a sexual relationship with two female students who were fourteen and sixteen years of age. The trial judge concluded that a sentence in the general area of twelve months imprisonment would be appropriate. However, taking into consideration the period of time spent in custody by the accused prior to being sentenced, a period of four months imprisonment was imposed. [85] In R. v. G.A. (1992), 71 C.C.C. (3d) 71 (N.L.C.A.), the accused was convicted of sexual offences in relation to the son of his employer. The offences involved various acts of a sexual nature including fellatio and masturbation. At
37. the time, the victim was between six and sixteen years of age. The offence did not involve any acts of violence and the accused had no previous convictions. The trial judge imposed a period of five years imprisonment. The accused appealed. [86] The Court of Appeal upheld the sentence imposed. In doing so, it stated: The relationship between the complainant and the appellant in this matter
was naturally a homosexual relationship but there does not appear to have been any anal intercourse. Apart from the forced sexual contact, there was no violence. The crime had a serious impact upon the complainant. There was no evidence as to how it affected his family. It may very well affect the appellant in his family and business life. There was a great degree of trust involved over most of the period that the abuse took place. Such activity is abhorrent to society, more so in current times when the prevalence of sexual abuse of children is becoming so notorious. The attitude of the offender is negative. He not only shows no remorse, he denies that the events took place. He pleaded not guilty. There is no evidence that he was a paedophile and the evidence leaves no doubt that he was able to satisfy his sexual impulses by contact with the female sex. Specific and general deterrence are important. Until society develops a better way of dealing with sexual offenders, lengthy prison terms must be imposed, particularly for those who engage in a pattern of continual sexual abuse. Such persons must be aware from the very beginning that their conduct will attract serious penal consequences. [87] In R. v. B.W.J. (1992), 109 Nfld. & P.E.I.R. 80 (N.LC.A.), the accused was convicted of thirteen sexual offences in relation to five children: ... Four of the complainants were foster children in a foster home operated by the respondent's mother and in which the respondent also resided. The other complainant was a nephew of the respondent. All of the incidents in relation to the foster children occurred between June 1981 and June 1984. They were carried out during the time when the complainant J.M. was between six and one-half and eight and one-half years old, the complainant G.M. between ten and one-half and twelve and one-half years 38. old, the complainant J.B. twelve and twelve and one-half years old and the complainant M.E. eight and one-half and nine and one-half years old. The respondent was at the time in his early thirties. The nature of the acts performed by the respondent upon the various young victims is outlined in detail in the sentencing judgment of Russell, J. It involved sexual touching, the forcing of the children to masturbate him and
[88] The trial judge imposed a sentence of five and one-half years imprisonment. On appeal, the Court of Appeal increased the sentence imposed to one of eight years imprisonment. At paragraphs eleven to twelve of its judgement, the Court of Appeal explained its reasons for doing so: It goes without saying that the acts of the respondent were reprehensible, not only because of their nature but as well because they were for the most part committed upon young, vulnerable foster children who would have deemed themselves to be confined to their then environment. Indeed, they would have no means of escape from the respondent. Additionally, there is the appalling feature of the persistence of the respondent in continuing these assaults on a two to three times a week basis against each victim and the lasting and damaging effect which the respondent's actions have had on them. This matter ranks with the most serious of such matters that have come before the courts in recent years. In our view, the sentences in relation to each victim should have been consecutive because they are all distinctly different 39. offences. This also means that the total sentence will be substantially increased, as it should be for the reasons stated, as well as to bring it in line with sentences imposed in other such cases.
to perform acts of fellatio on him and the performing of similar acts by the respondent on the boys. The acts occurred as often as two or three times a week in respect of each of the foster children over the period while they were in the foster home, indicating that there were hundreds of individual assaults. Further, there were occasions when the respondent directed some of the children to watch while he was engaged with another of them. The offence in respect of the nephew of the respondent was that of forcing the boy to masturbate him while the nephew (M.J.), who was then nine or ten years old, was staying overnight at the accused's apartment. This occurred in 1986.
[89] In R. v. Mifflin (1997), 158 Nfld. & P.E.I.R. 163 (N.L.S.C.), the accused, a teacher, was convicted of two breaches of section 153(1)(a) of the Criminal Code. The offences involved two of his students. An agreed statement of facts was entered at the sentence hearing: On May 22nd of 1996 Pat Lasky of Social Services in Clarenville, Newfoundland contacted the Clarenville Detachment to advise that two females had been sexually assaulted by their teacher, Clive Mifflin. The students, A.M. age 13, and J.G., age 14, had disclosed to their guidance counsellor [...] on that same date. On May 22, 1996 A.M. attended the detachment office and Cpl. Butt took a statement from her. M. advised that on May 16, 1996 she received a telephone call from her [...] teacher, Clive Mifflin, at her residence at 1830 hours. Mifflin asked her if she would like to accompany him to the school where he had some photocopying to do and afterward they would go and park and have a few beer. Mifflin picked A.M. and J.G. up at 7 p.m. at M.'s residence in B. and drove to the school where both girls remained in the car while Mifflin went into the school. Mifflin returned a half hour or so later and then drove with the two teenage girls to land owned by C.W. in B. Mifflin parked in a secluded area well away from access by the public and got in the middle of the front seat of the car between A.M. and J.G. The three sat there talking, smoking cigarettes and drinking beer that Mifflin had provided. After they had been there about an hour or so Mifflin sniffed M.'s neck, told her how nice she smelled, and then kissed her on the left side of her neck. Mifflin then kissed J.G. on the lips and put his tongue in her mouth momentarily. Mifflin also put his hand on G.'s thigh just above her knee. Mifflin then moved his vehicle to another area 300 feet away and they remained there for roughly one hour drinking beer and smoking cigarettes. At approximately 11 p.m. Mifflin drove the two girls home. He invited himself into J.G.'s home for a lunch and when A.M.'s mother arrived and smelled beer on her daughter's breath Mifflin spoke up and said the 40. girls had not been drinking in his presence.
[90] The trial judge imposed a period of two months imprisonment on each count, to be served on a concurrent basis and in the community. [91] In R. v. Drover, [1998] N.J. No. 102 (S.C.), the accused, a teacher, was convicted of the offence of sexual assault in relation to a student that was an actor in a play the accused was directing. The offence was described by the trial judge in the following fashion: Drover was a high school teacher and a drama director, directing a play in Grand Bank in the summer of 1996. He invited the three member cast to hold a rehearsal at his home in Marystown. On 25 July, the night before the rehearsal, he was alone in his house with the complainant, A.W., an actor in the play. He sexually assaulted W. by performing oral sex on him, forcing W. to perform oral sex on him and performing anal sex on W. W. did not consent. There was minimal violence. At the time of the assault, Drover was 40 and W. was 18. [92] The trial judge imposed a period of incarceration of two years less a day. He rejected the submission that it be served in the community. Though he held that the accused did not constitute a danger to the public, he concluded that a community based sentence would not adequately achieve the goals of retribution, denunciation and general deterrence... [93] In R. v. Barry (1998), 167 Nfld. & P.E.I.R. 65 (N.L.S.C.), the accused was convicted of four sexual offences in relation to a young boy who resided at the
41.
Mount Cashel Orphanage. The offences included the accused placing his tongue into the victims mouth and placing his penis between the victims legs. [94] The trial judge referred to the nature of the victims life at the orphanage and the total control exercised over it by the accused. He concluded that a period of three years imprisonment was an appropriate sentence. [95] Though M. also held a position of trust and authority in relation to his victims, he did not exercise the type of control over their daily lives that the offender in Barry did in relation to his victim. [96] In R. v. Bromley (1998), 167 Nfld. & P.E.I.R. 212 (N.L.S.C.), the accused was convicted of eleven sexual offences in relation to four young boys. At the time that the offences were committed, the accused was a priest. The victims were young boys who had been sentenced to the Whitbourne Boys Home, where the accused dispensed spiritual advice. [97] The trial judge summarized the circumstances of the offences as follows: K.Y. was approximately 13 years of age when he went to Whitbourne in 1974. He stayed there as an inmate for approximately four and a half years. K.Y. suffered from polio and was severely handicapped. His first involvement with Father Bromley was during a period of counselling and/or confession. At Father Bromley's request, K.Y. was encouraged to expose his person and show the scars that were present from various operations he had to attempt to alleviate his handicap. The accused encouraged K.Y. to undress, masturbate, and touch himself in the (sic) front of the priest. This ultimately led to masturbation by Bromley on K.Y. as well as oral sex being performed by the
42. accused. R.C. was approximately 15 years of age when he first went to Whitbourne. He confided in Father Bromley that he missed his family and friends in St. John's and requested that he endeavour to have him transferred from Whitbourne to St. John's. Bromley told R.C. that he could arrange that and, in fact, ultimately told him that his transfer was imminent. This was not true! As a result of gaining R.C.'s confidence, Bromley persuaded R.C. to become involved in mutual masturbation and oral sex. At one point Bromley insisted that in order to encourage him to facilitate R.C.'s move to St. John's R.C. would have to perform oral sex on the accused. R.C. did this and as a result he got stomach sick and was emotionally upset. According to R.C., Bromley told him that if he told the staff what happened he would tell the staff that he had tried to escape. P.M. was 14 years of age when he first when to Whitbourne in 1979. Bromley's involvement with P.M. was that on two occasions he had P.M. touch his genitalia and the accused masturbated P.M. On one occasion there was an attempt at anal intercourse but P.M. said that he didn't think there was penetration. He did cry out however because he did suffer physical pain. He was subsequently masturbated. The jury in this case did not convict on the buggery charge but did convict on the included offence of indecent assault. E.B. was approximately 14 years of age when he first went to Whitbourne in 1983. The jury found that the accused was guilty of two offences of gross indecency; one of sexual assault and one of buggery on E.B. The indecent assault was in relation to the accused touching Mr. E.B.'s genitals; and the gross indecencies consisted of two occasions while he was at the accused's cabin and during the night the accused stood over his bed and masturbated. The buggery occurred while E.B. was sleeping over at the accused's cabin. There was no violence used during the buggery but Mr. E.B. said that he did cry out and suffered physical trauma. [98] The trial judge imposed a period of seventy-eight months imprisonment. He stated that these were probably the most vulnerable victims that one can envisage
43. for a perpetrator of sexual assault. They were incarcerated, lonely, homesick and lacked the affection that a normal child of their ages would expect. Bromley portrayed himself as a kind, loving and caring surrogate for these boys who were removed from their own families and loved ones. He sought their confidence and they gave him their trust which he seriously breached. [99] In R. v. Stuckless (1998), 41 O.R. (3d) 103 (C.A.), the accused pleaded guilty to twenty-four counts of indecent assault and sexual assault. The offences were committed over a period of approximately twenty years while the accused was working at Maple Leaf Gardens as an assistant equipment manager, for two public schools as a teacher's assistant and for a number of local minor hockey and lacrosse teams as a volunteer coach. The victims were boys between the ages of ten and fifteen years of age. The Ontario Court of Appeal described the circumstances of the offences as follows: There were hundreds of incidents. They occurred in Toronto between 1968 and 1988 when Stuckless was working for Maple Leaf Gardens as an assistant equipment manager, for Park Public School and Lake Wilcox Public School as a teacher's assistant, and for a number of local minor hockey and lacrosse teams as a volunteer coach. At the time of sentencing, Stuckless was 48 years old. The details of the offences to which Stuckless pleaded guilty are set out in an agreed statement of facts, which describes the methodology used by
Stuckless as follows:
44. He would begin by befriending them. In some cases he would also befriend the parents of the victims, thus gaining their trust. The parents would allow the victims to go to hockey games and movies with the accused. In other cases, he would befriend the victims and gain their trust by allowing them into Maple Leaf Gardens for Toronto Maple Leaf practices, and for Toronto Toros and Toronto Marlies Hockey games. He would take the victims to movies, buy them meals or give them hockey sticks or other memorabilia. Many of the children whom Stuckless abused came from low income families in Regent Park. The sexual conduct with the boys included fondling them; performing oral sex on them; having them perform oral sex on him; masturbating them; having them masturbate him; masturbating in front of them; mutual masturbation; rubbing against them until he ejaculated; having the boys perform sexual acts with each other in front of him and his Maple Leaf Gardens supervisor, George Hanna, while he and Hanna masturbated; having the boys perform oral sex on George Hanna; and participating with Hanna in group sex with the boys. The relationships with the boys lasted anywhere from several days to several months or several years. They took place in a variety of locations, including Maple Leaf Gardens, the boys' homes, movie theatres, classrooms, showers, cars, Cherry Beach and Stuckless' home. The various impacts of the abuse on the victims included depression, loneliness, trauma, shame, pain, guilt, nightmares, helplessness, fear, loss of confidence, rage and self-hatred. Some quit school, developed a dependency on drugs and alcohol, had difficulties in developing and maintaining personal relationships, or required extensive counselling, all of which impaired their ability to get or keep a job. Many felt their lives had been ruined. There were several suicide attempts.
Pursuant to R. v. Garcia, [1970] 1 O.R. 281, [1970] 3 C.C.C. 124 (C.A.), additional facts were taken into account for purposes of sentencing. These facts related to one count of sexual assault involving seven victims, covering a period from 1978 to 1987 in Toronto; and two counts of sexual assault 45. involving a single complainant in Newfoundland, covering a period from 1992 to 1995. Stuckless pleaded guilty to these offences in March 1996 and was sentenced to 14 months, followed by a period of probation. [100] The trial judge imposed a term of imprisonment of two years less a day followed by three years probation. He emphasized the lack of violence having been used by the accused in committing the offences. [101] The Court of Appeal strongly disagreed with this reasoning and increased the sentence imposed to a period of five years imprisonment. It concluded that the trial judge had seriously underestimated the serious nature of the offences committed: It is true that there were no beatings or weapons used by Stuckless, but that is because his strategy involved the exploitation of trust, not the use of overt force. All the boys were either in a relationship of trust with Stuckless because he was their coach or teacher, or they came to trust him because he nurtured their confidence in order to ease the route to the inevitable sexual abuse. Rather than threats, Stuckless used the irresistible lure of Maple Leaf Gardens to entice many of these vulnerable boys into his web, offering them access to its otherwise unattainable amenities in order to reduce their resistance to his sexual assaults. It does not diminish the seriousness of these offences that Stuckless used the magnetic aura of Maple Leaf Gardens rather than a more overtly forceful form of manipulation to prey on these children.
46. individually and collectively, unconscionable. Any characterization which purports to diminish their magnitude, is unacceptable. I am unable to find a single reported appellate decision in recent years which does not view the sexual abuse of children as extremely serious, whether or not there is penetration. In saying there was no violence "apart from the coercion implicit in the relationship between the parties" (emphasis added) or "beyond what was implicit in the interference with the physical integrity of the complainant", Watt J. misappreciated how serious these offences were. Sexual abuse is an act of violence. When committed against children, the violence is both physical and profoundly psychological. It is coercive and exploitative conduct, and represents the use of compulsion against someone who is defenceless. As Moldaver J. stated in R. v. McF., released April 27, 1992, unreported (Ont. Gen. Div.): I cannot conclude that [the accused] should be treated in a more lenient fashion simply because he refrained from the use of threats of physical harm or the infliction of limited and measured amounts of force. . . . I must again reiterate the feelings that I have expressed in similar cases where the lack of serious physical harm has been advanced as a factor to be considered in mitigation. The crimes of incest and sexual assault are inherently violent. They can and often do have a crippling effect upon the psychological and emotional well-being of the victim. Conduct which brutalizes the mind can be far more devastating, painful and long-lasting than conduct which causes injury to the body.
The absence of penetration does not automatically relegate the sexual abuse of children to the "lower range" of sexual offences. There is no question that "additional force", "collateral crimes" and penetration are aggravating factors. But their absence does not thereby transform them into mitigating circumstances, nor neutralize the other aggravating factors found in this case: the abuse of trust, the number of victims, the frequency of the assaults and their devastating impact on the lives of the victims. These offences were,
[102] In R. v. Lasik (1999), 180 Nfld. & P.E.I.R. 125 (N.L.S.C.), the accused was convicted of a number of sexual offences in relation to seven young boys. At the time of the offences, the accused was teaching grades 7 and 8 at the Mount Cashel Orphanage. The victims were residents. At the time of sentencing, the accused was sixty-eight years of age. He had no previous convictions. The circumstances of the
47. offences were described by the trial judge as follows: Counts No. 1 to 6 pertained to R.D.. Count No. 1 is indecent assault, the remaining five are buggery. The indecent assault upon Mr. D. was comprised of kissing upon the mouth and fondling of his "buttocks and privates". The fondling was both inside and outside his clothing. It occurred approximately two to three times a week over the period of a few months. The incidents of buggery upon R.D. occurred in a variety of locations at Mount Cashel including the farm, the Brothers' quarters, the band room and the boiler room. Mr. D. testified that it occurred frequently, believing it to be approximately 200 times or more. The acts of buggery also involved other sexual activity including masturbation and oral sex. Coincidental with some of the incidents were threats by the offender that he would break Mr. D.'s neck if he told. Mr. D. was between the ages of 9 and 12 when these crimes were perpetrated upon him. The offender was convicted of one count of indecent assault upon Mr. N.. Mr. N. testified he was in the top bunk of his dormitory, sick. It was daytime. Ronald Justin Lasik entered and asked why he was there. He then proceeded to put his hand under the blanket and inside Mr. N.'s pyjamas, massaging his buttocks, penis and touching his genital area. Approximately
two or three more acts of indecent assault of a like nature occurred. At the time of the incident R.N. was age 13 or 14. The Jury found Ronald Lasik guilty of one count of buggery in respect of J.G.; two counts of indecent assault; one count of gross indecency and one count of common assault. Mr. G. testified the offender had anal sex with him. He stated he believed this occurred on three occasions, approximately twice in the furnace room and possibly once in the Grade 7 classroom. As to the indecent assaults, Mr. G. described these as occurring while he was in the dormitory at night. He indicated the offender would come to his bed, touch his face and then move his hand to his chest and ultimately his private parts, playing with him until he ejaculated. The indecent assaults were accompanied, on occasion, with acts of oral sex by the offender upon him. In addition to the indecent assaults in the dormitory, Mr. G. described like incidents occurring in the classroom. As to the acts of gross indecency, J.G. 48. recounted episodes of fellatio or oral sex which occurred approximately two or three times in the dormitory. Finally, Mr. G. described the common assault perpetrated upon him by the offender. He stated he was strapped while naked with his hands and feet tied. This occurred in a classroom at Mount Cashel. Mr. G. said that the belt used was made of a horse harness. He was beaten three "whacks" at a time over his body including his buttocks area until the seventeenth time, at which point he fell to the floor. The offender then picked him up and proceeded to strap him three more times for a total of twenty strikings. F.N. described one incident of indecent assault and one incident of common assault inflicted upon him by Ronald Lasik. The indecent assault occurred at night in the dormitory. The offender kissed him on the mouth and fondled his genitals touching his penis and testicles. He indicated the offender told him never to tell anyone of the incident. Mr. N. also described a brutal common assault inflicted upon him by Ronald Justin Lasik. He was taken out of the offender's classroom to another room, told to strip and beaten with a strap. Mr. N.'s testimony was that he was in a kneeling position, or fetal position, while being beaten and that he begged the accused to stop hitting him. He believed the number of times he was struck to be approximately forty to
fifty, but definitely more than twenty. Mr. N. said he felt great physical pain as a result of this episode.
Ronald Justin Lasik was found guilty of one count of indecent assault and one count of common assault upon J.P.. Mr. P. described Ronald Lasik as having touched and stroked him on his penis. This occurred in the dormitory after he had gone to bed. The offender was also convicted of a common assault which consisted of Ronald Justin Lasik kicking J.P. in the ribs while he was on the floor. The conviction pertaining to R.S. is one count of common assault. Mr. S. was told by the offender to get in the shower, having arrived late for same. He stated the water was cold and that he flicked a bit on himself and then attempted to leave. Ronald Justin Lasik told him no and indicated that he had to shower again. It is Mr. S.'s testimony that as he started to back away, Ronald Lasik commenced "slamming him with the belt". He stated it "hurt like hell". He indicated he was struck in the lower back, the cheeks of his 49. buttocks and the backs of his legs, approximately five to eight times. He also indicated he was bruised and there were raised welts. As a result of the striking he found it hard to get his clothes on afterwards and the next day found it difficult to sit down when at band practice. Lastly, the offender was convicted of one count of gross indecency and one count of common assault upon W.H.. The gross indecencies occurred in the dormitory at night. The offender would come to Mr. H.'s bed, fondle his penis until it had hardened and he had ejaculated. He also described occasions when the offender performed oral sex upon him. As to the common assault, W.H. said that Ronald Justin Lasik chased him after he had observed an incident in the Grade 10 classroom, catching him and ultimately punching and beating him. He stated the offender was screaming like a "madman". He believed the beating was tied to what he had witnessed happening in the classroom. [103] Placing great reliance on the accuseds position of trust and the vulnerability
of the victims because of their place of residence, the trial judge concluded that a period of eleven years imprisonment was an appropriate sentence. [104] In R. v. C.A.K. (1999), 174 Nfld. & P.E.I.R. 279 (N.L.C.A.), the accused was convicted of sexual offences in relation to two of his nieces. The offences involved sexual intercourse. The trial judge imposed a period of eight years imprisonment. On appeal, the Court of Appeal concluded that the sentence imposed was a marked departure from the sentences customarily imposed for such offences in similar circumstances. As a result, the sentence was reduced to a period of five years imprisonment. [105] In R. v. S.(R.N.) (2000), 140 C.C.C. (3d) 553 (S.C.C.), the accused was
50. convicted of sexually assaulting his step-granddaughter. The Supreme Court of Canada described the circumstances of the offence as follows (at page 556): The respondent was convicted of sexual assault and invitation to sexual touching in relation to incidents with his step-granddaughter which occurred between October 1990 and September 1994. At the time of the offences, the complainant was between five and eight years old, and the respondent was between the ages of 46 and 50. The evidence on the sexual assault count was that the respondent fondled the complainant's vagina on a number of occasions. On none of the occasions was there any vaginal penetration. The evidence on the incidents comprising the invitation to sexual touching count was that the complainant was offered $5 or some such sum to touch the accused's penis, that she accepted the offer and was paid the money. The touching incidents occurred two or three times. A charge of sexual
interference was conditionally stayed pursuant to the principles discussed by this Court in R. v. Kienapple, [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524, 44 D.L.R. (3d) 351. At the time of sentencing, the respondent lived with his wife. Both his wife and his two step-sons remained supportive of the respondent throughout the proceedings against him and following his conviction, while the complainant and her mother were ostracized by the family. The respondent was in poor health, suffering from heart problems and hypertension, as well as agitation as a result of the proceedings against him. He had no prior criminal record, and had good letters of reference from members of his community. He maintained his innocence after his convictions, and expressed no remorse. [106] The trial judge imposed a period of nine months incarceration. The British Columbia Court of Appeal set aside this sentence and replaced it with a nine month conditional sentence order. The Supreme Court of Canada granted the Crown leave to appeal. Though the appeal was primarily concerned with the proper interpretation that should be given to section 742.1 of the Code, the Supreme Court
51. in restoring the period of incarceration imposed by the trial judge made a number of comments which are relevant to this case and to the imposition of sentence in such cases generally (per Lamer, C.J.C., as he then was): With respect, I do not think that a nine-month conditional sentence was a fit sentence, in light of the relevant sentencing considerations, including the gravity of the offences committed and the high moral blameworthiness of the respondent. The impugned acts occurred repeatedly over a period of approximately five years. The respondent abused the trust of a very young child, despite clear indications from the complainant that she did not like
In conducting its re-sentencing, the Court of Appeal should have recognized that the relatively lenient nine-month term imposed by MacArthur Prov. Ct. J. was the result of his taking into account the precarious health of the respondent at the time of sentencing, his marital difficulties and the social stigma he had already suffered, as the sentencing judge would have been inclined to agree with the Crown's submission that a term of incarceration in the range of 18 to 24 months was warranted. By imposing a conditional sentence of only nine months, the Court of Appeal transformed what was already a lenient sentence into an unfit sentence. I would add that the Court of Appeal was not obligated to impose a conditional sentence of equivalent duration to the term of incarceration imposed by the trial judge: see Proulx, supra, at para. 104. [107] Five months after the Supreme Court of Canada filed its judgement in S.(R.N.), the British Columbia Court of Appeal, without any reference to it, filed its
52. judgement in the case of R. v. Bremner (2000), 146 C.C.C. (3d) 59. [108] In Bremner, the accused after a four day trial was convicted of sexual offences involving four young boys who were between the ages of 13-16 years. At the time of the offences (sometime in the late 1960's or early 1970's) the accused
what he was doing. He remained unrepentant and continued to deny that the offences took place. The amount of denunciation provided by a nine-month conditional sentence was clearly insufficient in the circumstances to signify society's abhorrence for the acts the respondent committed, despite the fact that his liberty was restricted by the conditions imposed. It must be remembered that, even though the respondent experienced some marital difficulties, he still benefited from the support of his family, while the victim and her mother were ostracized by the rest of the family.
was 23-26 years of age. The victims, as here, had been Sea Cadets at the time and the accused an officer. The trial judge described the nature of the offences as follows (at paragraph 4): The first conviction was on Count 1, and that was a charge of indecent assault of another male person, D.R. And in summary, that incident involved three youths, Sea Cadets being in the aft cabin of a ship that was used by the Sea Cadets and Mr. Bremner coming in and attacking D.R. and grabbing his genitals down his pants. The next conviction is on Count 5. That is indecent assault of another person, D.N., and in summary, was grabbing of a penis in a sleeping bag, while the Sea Cadet was sleeping in a room next to the drill hall. Count 9 was the next conviction. The complainant R.S. The incidents involved, indecent assaults, were two incidents, masturbation on a camping trip and at the home of the accused, where he apparently lived with his parents. Count 11, the complainant was A.H., and the incident again, indecent assault and it would be described as a mutual masturbation in the bunk area in the forward cabin of the same ship I mentioned previously. [109] The trial judge, stressing the position of trust involved and the requirement for denunciation, imposed a period of eighteen months incarceration. On appeal, the
53. Court of Appeal varied the sentence imposed so as to allow it to be served in the community. In the course of its reasons, the Court of Appeal made a number of
critical and rather gratuitous comments concerning the victims and their delay in having complained to the police (at paragraphs 55-62): In some situations such delay is understandable. A child of, say, eight or ten sexually interfered with by a stepfather or other male family member may feel, and indeed be, powerless to do anything. When that child reaches adulthood, ought he or she not then to complain and not wait another ten or twenty years? In my experience, what is rarely clear in cases of delays of such length is why now and not much earlier? In the case at bar, the offences are alleged to have occurred in various periods between 1st January, 1968, and 3rd December, 1972. When the first complaint was made to the police, I do not know, but the Information bears date the 12th July, 1999. The evidence in the case at bar provides no compelling answer, either to the question "why now?" or to the question of what social purpose has been served by bringing obloquy on the appellant whose life, on the evidence, for nearly thirty years has been exemplary. The only possible purpose is to appease the victim or victims - to satisfy a demand for vengeance. I am happy to note, however, that not all the victims in the case at bar appear to want vengeance. But even if vengeance were a permissible purpose in the fixing of sentences under our legal system, which it is not, the question would then arise whether the vengeance demanded was out of all proportion to the crime to be avenged. If one looks at the particulars of the crime against A.H., who seeks a mighty vengeance, one finds that in the continuum of sexual crimes from, at one end, the brutal rape of a woman or the buggery of a little boy, to, at the other end, 54. an unwanted touching by one adult of another, it is, looked at objectively,
nearer the latter than the former. In matters of sentencing, the court must appraise the crime objectively.
The subjective impact on the particular victim is essentially irrelevant. The doctrine of the eggshell personality, whatever part it properly plays in the assessment of damages in a civil case, is not a proper subject of investigation by a court carrying out the statutory duty of sentencing for a criminal offence. [110] There was only one adult involved in Bremner and it is difficult to understand the purpose served by the Courts criticism of the victims of the crimes.
[111] It appears that the Court is suggesting that victims of childhood sexual abuse should remain silent forever unless they raise an immediate hue and cry at the time of the offence or shortly thereafter. Whatever the Court of Appeals purpose was, its words illustrate an appalling ignorance of the dynamics of the sexual abuse of children, its reporting of it by them and a surprising confusion between the concepts of vengeance and denunciation.8 [112] Some individuals are significantly and horrendously affected by what others might suggest is in their view, a minor sexual offence. This is one of the reasons why the sexual abuse of children, of any sort, must be seen as such a serious crime. It does not always require violence or physical harm to cause life long harm to its
For a recent review of the phenomena of late reporting by victims of childhood sexual abuse, see Deborah Connolly and Don Read, Remembering Historical Child sexual Abuse (2003), 47 C.L.Q. 438, at pages 440-445.
55. victims. [113] Finally, as regards the Court of Appeals comments that the subjective impact on the particular victim is essentially irrelevant, I must respectfully disagree. In determining what is an appropriate and proportionate sentence in a particular case, the effect that the offence has upon its victim is a valid consideration. A sentence imposed for a particular offence must reflect the consequences of the offence (see R. v. Cooksley & Anor, [2003] EWCA Crim 996). The sentencing principles of proportionality and denunciation cannot otherwise be satisfied and the public will quickly and quite properly lose confidence and respect in any legal system that fails to properly consider such a factor. In addition, it is quite appropriate for a court to consider not only the actual harm that an offence causes but the potential harm that can be caused by the particular type of offence committed. Thus, in sentencing offenders for offences involving the sexual abuse of children, significant periods of imprisonment are warranted because of the potential such offences have to cause their victims long term harm. The offender's moral blameworthiness lies in her or him having subjected the victim to the possibility or risk of such harm occurring. As Fletcher points out, though in a different context, one "could well argue that the essential meaning of wrongful conduct is that it represents a danger that need not and ought
not be tolerated by
56. others."9 I believe that this is exactly the point the Supreme Court of Canada attempted to make, in the context of sentencing, in their judgements in Martineau; M.(C.A.); Reference re Section 94(2) Motor Vehicle Act; Latimer and Stone. [114] In R. v. Sundman, [2001] B.C.J. No. 2910 (P.C.), the accused was convicted of numerous incidents of sexual assaults...on various boys who were cadets at the time, generally between the ages of 13 and 15. There were fourteen victims. At the time of the offences (1970-1978) the accused was a lieutenant with the Vancouver Corps of the Royal Canadian Sea Cadets. [115] The offences involved fondling, fellatio, masturbation, buggery and what the trial judge described as being close to an act of torture. At paragraph 24, the trial judge quoted, as follows, from the transcript of the preliminary inquiry: I also remember being in the area outside the office and Sundman dragging me across the floor by my testicles, and every time I would scream for help [this other person] would make an attempt to help me and Sundman would squeeze my testicles. I remember him dragging me into the corner so that he was in the corner and I was in front of him, his back to the corner, and lifting me up off the floor, my back to the floor, and I was scrambling to try and unweight (sic) myself, to get my weight off because of the pain. And I remember looking in his face and him having a sadistic smile when [this George P. Fletcher, Rethinking Criminal Law, Oxford University Press, 2000, at page 477.
9
other person] would attempt to help and he would just squeeze and [the other person] would back off because he knew that it would just get worse for me.
57. [116] The trial judge imposed a period of seven years imprisonment. [117] In R. v. G.K.B. (2001), 152 C.C.C. (3d) 56 (N.L.C.A.), the accused, a Christian Brother, was convicted of four sexual offences in relation to a resident of Mount Cashel Orphanage. The offences involved fondling, masturbation and the accused placing his tongue into the victims mouth. [118] The trial judge imposed a period of three years imprisonment. In upholding the sentence imposed the Court of Appeal stated: In summary, I am satisfied, having regard to the proven facts, the position of trust of the appellant at the time of the offences and the impact on N.P., that this Court should not interfere with the sentence imposed. In other words, I find that the sentence is neither clearly unreasonable nor demonstrably unfit. [119] In R. v. D. D. (2002), 58 O.R. (3d) 788 (C.A.), the accused was sentenced to a period of eight years imprisonment for eleven sexual offences involving four young boys. The Court of Appeal summarized the nature of the offences committed by the accused by stating (at paragraphs 6-9): ...over a seven-year period, beginning in 1990 when he was 25 and ending in 1997 when he was 32, the appellant befriended four young boys ranging in age from five to eight years and for periods of time ranging from two to seven years, he regularly and persistently engaged them in all manner of sexual activity. The abuse took many forms, including countless acts of masturbation and oral sex, group sexual encounters involving the appellant
and several of the boys, attempted acts of anal intercourse in the case of three of the boys and completed acts of anal intercourse in the case of two. A somewhat more detailed account is found in the following excerpt from the Crown's factum:
58. The Appellant coerced his young victims to engage in virtually every conceivable homosexual act with him. More specifically, the Appellant French kissed them; he licked them (their backs and "bums"); he fondled their buttocks and genitals; he masturbated them, masturbated himself in front of them, and had them masturbate him; he relentlessly attempted to anally penetrate them (thinking that "sooner or later" it would fit); he had them anally penetrate him; he had them commit acts of fellatio on him (sometimes ejaculating into their mouths); he performed oral sex on them; and he successfully had anal intercourse with them. Sometimes these sexual acts took place in groups, or with others watching the sexual activities. At all material times, the appellant stood in a position of trust towards the boys. In three cases, he was a close and trusted family friend and in the fourth, he assumed a role akin to that of stepfather. In order to gain his way with the boys and keep them compliant, the appellant made life interesting and exciting for them. He bought them expensive gifts, took them on fun-filled adventures, including overnight camping trips, allowed them to use his video games and his off-road vehicles and, on occasion, provided them with beer and cigarettes. In addition, as part of the "grooming process", he exposed the boys to pornography in the form of a video tape that depicted all manner of sexual activity, including women engaged in acts of bestiality with dogs and horses. The means chosen by the appellant to ensure compliance, on the one hand, and secrecy, on the other, involved not only the carrot but the stick. When necessary, he used violence to compel compliance. For example, one boy recalled that whenever he tried to stop the appellant from penetrating him anally, the appellant would "smack" or "punch" him. The appellant also used threats of violence and extortion to keep the boys quiet. One of the boys was
59. the child over his 30th-floor apartment balcony and warned him that he would be thrown off if he ever complained to anyone. [120] The Court of Appeal upheld the sentence imposed though it concluded that it fell at the lower end of the range of sentences for crimes as grave as those committed by the appellant. It stated that it considered the six-year global sentence in Stuckless to be at the lower end of the appropriate range of sentences for crimes of the magnitude committed by Stuckless. In addition, the Court of Appeal stressed the importance of the sentencing principles of denunciation and deterrence taking precedence (at paragraphs 34-36): The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718(a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing. We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are
told that he would go to jail and not see his parents again if he said anything. Another was told that if he disclosed, his parents would think there was something wrong with him and they would dislike him and kick him out of the house. Still others were photographed while engaging in homosexual acts and told that if they disclosed to anyone, the pictures would be posted at their schools. And finally, in the case of his surrogate stepson, the appellant held
manifestly incapable of defending themselves against predators like the appellant and, as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow. In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long 60. since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known. [121] The Court of Appeal also considered how a sentencing judge is to consider those cases in which an offender held a position of trust in relation to his or her victims (at paragraph 44): To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See, for example, R. v. M. (C.A.), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W. (L.K.) (1999), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.) [122] In R. v. M.J.M. (2002), 220 Nfld. & P.E.I.R. 358 (N.L.S.C.), the accused was convicted of sexual offences in relation to two young boys. He had been
previously convicted of a similar offence during the same time period and sentenced on an earlier occasion to a period of two years imprisonment (see [1994] N.J. No. 289 (P.C.). [123] At paragraphs six to eleven of his judgement, the trial judge described the
61. nature of the offences before him in the following fashion: P.M.W. was born on Bell Island on January 28, 1969. He lived in a house with his mother and twin sister which was in the same neighbourhood as the residence of the Offender. M.J.W. was the brother of P.M.W.'s grandmother on his mother's side of the family. In other words, the Offender was P.M.W.'s great-uncle. Because of this relationship, P.M.W. was encouraged to visit with the Offender at his house. P.M.W. would also "sleep over" on some weekends and during the school vacation periods. The first incident involving P.M.W. occurred in 1978 when he was nine years old. The Offender put his hand into the complainant's pants and began rubbing his penis. On another occasion the Offender attempted to have anal intercourse with P.M.W., however, he stopped when P.M.W. complained that it hurt. The Offender also got P.M.W. to agree to have anal intercourse with him. From the time P.M.W. was nine years old in 1978 until he was thirteen in 1982 there were twenty to thirty occasions that P.M.W. and the Offender would engage in mutual masturbation. There were also occasions when the Offender would have P.M.W. watch as he masturbated himself. On one occasion, the Offender arranged for P.M.W. and a younger boy (J.D.) to take off their clothes and get into bed with him. The two children and the
Offender then engaged in mutual masturbation and fellatio. The other complainant (H.B.) was born on Bell Island on April 28, 1972. H.B. was not related to the Offender. He was just one of a number of male children who use to "hang out" around the Offender's house because of the ready availability of alcohol and cigarettes. In 1983, when H.B. was eleven years old, three incidents took place. On two occasions the Offender exposed his genitals and masturbated in his presence. On the third occasion the Offender put his hands into H.B.'s pants and fondled his penis. 62. [124] The trial judge imposed a period of three years imprisonment. He concluded that the sentence imposed must ensure that the Offender is kept away from young boys for a period of time and it must also deter him and others from committing similar offences in the future. It will be necessary to order a significant period of incarceration to achieve these purposes. [125] In R. v. V.C. (2002), 219 Nfld. & P.E.I.R. 126 (N.L.S.C.), the accused was convicted of seven sexual offences against four young children. At paragraph three of his judgement, the trial judge summarized the circumstances of the offences: Between 1967 and 1992 V.C. engaged in many sexual acts with four young boys from the community of St. Bride's. He commenced sexual activity with the youngest victim, G.J.C., when he was between five and six years old, fondling him initially outside and then inside his clothing and later engaging in fellatio, mutual masturbation and simulated sexual intercourse. With another victim, D.A.Y. sexual activity commenced when he was around eleven years old, involving masturbation, fondling, and simulated sexual
[126] The trial judge imposed a period of five years imprisonment. [127] In R. v. Bright, [2003] EWCA Crim 2169, the accused was sentenced to a period of seven years imprisonment for having committed eleven sexual offences between 1967 and 1982 against young girls who were variously related to him
63. through marriage, including his own daughter, or were otherwise acquainted with him as the children of friends. Some were members of the Saxon Street Girls Brigade in Soham near Newmarket in which the appellant's wife and her friend Brenda Jaggard were involved. [128] The Court of Appeal reduced this sentence to one of four and one-half years imprisonment on the basis that (at paragraph 63): ...There was extraordinary delay between the commission of the relevant offences and the trial of this appellant. By the time he was tried, he had already been convicted at Cardiff and sentenced to a total of 2 years imprisonment in respect of other indecent assaults separated in time, place and victim from the instant offences. However, we do not consider that, had all matters been heard together, a sentence of more than 7 years would have been imposed. Although repeated and inexcusable, the assaults alleged over
intercourse. V.C. began sexual activity with R.J.M. when R.J.M. was twelve years old. This involved kissing, masturbation, mutual fellatio and simulated sexual intercourse. In the case of D.J.M., V.C. began masturbating him when he was ten or eleven years old and engaged in simulated sexual intercourse. With all complainants the sexual activity continued at least until they reached fourteen years old.
[129] In R. v. D.C., [2003] B.C.J. No. 1655 (P.C.), the accused was convicted of offences pursuant to sections 151 and 271 of the Criminal Code. He had volunteered to work at a local school. He then used this position to sexually abuse a number of young boys. The circumstances of these offences were described as
64. follows (at paragraphs 3-8): The accused is twenty years old. In 2002 he obtained employment at a MacDonald's restaurant near Alpha school in Burnaby and also became a volunteer at nearby elementary schools during the summer months. The accused began to befriend young boys between the ages of eleven and sixteen while working as a school volunteer. He provided them with rides to school and gave them free food from MacDonald's. He attended a nearby park and took videos of the children playing. He invited the youths back to his house to watch videos and these young boys began to spend time with the accused on weekends and after school. The accused first met the complainant in count 1, C.T., during the Sun Fest Program at a local elementary school where the accused was a volunteer. At the time, C.T. was eleven or twelve years old. The accused befriended C.T. and took him for a drive to North Vancouver on July 12, 2002. They ate at a Wendy's restaurant and later the accused parked the car and suggested to
the years were not of the most serious kind in this category of offence. In all the circumstances we consider it right to reduce the total sentence imposed from one of 7 years to 4 years imprisonment. To this end, we propose to reduce the sentences imposed from 3 years to 2 years imprisonment on each of Counts 2-6 and to reduce the sentences from 3 to 2 years imprisonment on Counts 7-9, with a consequent reduction in the total sentence to one of 4 years imprisonment. To that extent, the appeal against sentence is allowed.
C.T. that they "try stuff". The accused placed his hand on C.T.'s genitals and C.T. swatted his hand away. On the drive home the accused offered to buy C.T. roller blades for a "blow job" and, when C.T. refused, the accused told him not to tell anyone about what happened. A few days later the accused was again driving with C.T. and he suggested that they go to the accused's house. While watching videos at the house, the accused put his hands into C.T.'s underpants and grabbed his penis. C.T. immediately got up and ran out of the house. The accused offered to buy C.T. a Nintendo 64 set if he kept quiet. The next day the accused gave C.T. $20 and the Nintendo set. The accused told C.T. he would be angry if C.T. disclosed to anyone what happened at the house. Although when interviewed by the police C.T. provided the names of two other boys who complained of being touched by the accused, both of these boys denied any touching when interviewed by police. They did confirm, however, that the accused had taken them to his home, given them rides in his car, and generally "hung out" with them. The accused met the complainant in count 4, M.R., in 2001 when the accused 65. was still in high school. The accused continued to spend time with M.R. in 2002. They went for rides in his car and went to the accused's house. The accused constantly brought up the subject of sex with M.R. to the point where M.R. became frustrated with him. In August 2002 the accused took M.R. for a drive. While in the car the accused felt M.R.'s arm and said he was strong. The accused then placed his hand on M.R.'s thigh and squeezed it. Finally, the accused moved his hand to M.R.'s genitals and left it there. When asked to stop, the accused removed his hand and apologized. The accused met the complainant in count 3, M.P., on September 3, 2002. M.P. was at a MacDonald's restaurant with a friend who introduced him to the accused. M.P. and the accused exchanged e-mail addresses and began to converse on the chat line. On September 13, 2002 C.T. told M.P. about the touching incident with the accused in North Vancouver. M.P. became more cautious about the accused and, when his internet discussions began to have
sexual overtones, M.P. informed his mother. [130] The accused was twenty-one years of age and had a related criminal record. The trial judge imposed a period of imprisonment of two years less a day. In rejecting the request that it be served in the community, the trial judge stated that such a sentence would be inconsistent with the fundamental principles of sentencing in this case. The need to denounce the accused's misconduct and deter him and others from such crimes in the future is of paramount concern in the circumstances of this case. The accused was in a position of trust and authority with regard to the young victims. Through a series of pre-meditated steps the accused groomed the victims for sexual contact. The accused committed similar crimes in the past and in spite of extensive counselling re-offended. Only a custodial sentence
66. is, in these circumstances, proportionate to the gravity of the misconduct and the degree of responsibility of the offender. [131] So then, what do these cases tell us as to how the sentencing of those who sexually abuse children is to be approached? I believe that a number of principles of general application can be found in these cases: 1. the primary principle of sentencing to be applied is general deterrence.
The interests of the individual offender must be secondary to the achievement of this goal; 2. these type of offences violate our basic and core societal values. Therefore, more than any other offence, the principle of denunciation must be expressed through the sentence imposed; 3. significant and lengthy periods of imprisonment should normally be imposed in such cases particularly when the offences involve a breach of a position of trust, have occurred over an extended period of time and/or involve multiple victims; and 4. a lack of violence having occurred during the commission of the offence does not lessen the seriousness of the offence. The Court must not fall into the trap of confusing physical with sexual abuse.
67. IMPOSING SENTENCE FOR MULTIPLE OFFENCES [132] As seen from the earlier summary of the circumstances of the offences, M. committed several offences involving four victims, a number of which were victimized on several occasions at different locations and times. This requires an application of sentencing principles designed for such occurrences.
[133] In R. v. Crocker (1991), 93 Nfld.& P.E.I.R. 222 (N.L.C.A.), the Court of Appeal held that ...all sentences should be consecutive unless there is a valid reason for making them concurrent. In R. v. Dyson (1982), 36 Nfld. & P.E.I.R. 532 (N.L.C.A.), however, the Court stated that this does not mean that the sentencing principle of totality is to be forgotten: Finally, whether the sentences imposed are concurrent or consecutive the totality of the sentence must always be considered, and the sentences adjusted on the charges to reflect this principle.10 [134] In R. v. Spellacy (1995), 131 Nfld. & P.E.I.R. 127 and R. v. E.W. (2002), 216 Nfld. & P.E.I.R. 89, the Newfoundland and Labrador Court of Appeal instructed sentencing judges that when imposing sentence involving multiple offences that: ...each offence should be treated separately and an appropriate term of 68. imprisonment applied to each. The terms should then be declared to be concurrent or consecutive using the well known principles set out in earlier decisions of this Court and others. The trial judge should then look at the net result to ensure that it does not offend the principle of totality. If it does not, then those are the terms of imprisonment that which are to be served. If the total term of imprisonment arrived at offends the principle of totality, then the individual terms should be adjusted by declaring some to be concurrent. If that does not achieve the desired result, then individual terms Section 718.2(c) of the Criminal Code states that where consecutive sentences are imposed, the combined sentence should not be "unduly long or harsh."
10
may be reduced.11 AN APPLICATION OF THESE PRINCIPLES TO THIS CASE [135] When several offences are committed in relation to a single victim and those offences are distinct acts, committed at different times or in different places for instance, then the sentences imposed should be consecutive. However, when more than one charge arises out of a single incident, then normally the sentences imposed should be concurrent. Applying those basic principles, I have concluded that the following individual sentences are appropriate (for ease of reference I have used the same numbering system resorted to earlier): 5. S.G. (s. 151), a period of seven months imprisonment, consecutive; 6. T.B. (s. 153(a)), a period of seven months imprisonment, consecutive; 7. T.B. (s. 153(a)), a period of five months imprisonment consecutive; 8. J.F. (s. 153(a)), a period of eight months imprisonment, consecutive;
69. 9. S.E. (s. 151), a period of eight months imprisonment, consecutive; 10. S.G. (s. 151), a period of eight months imprisonment consecutive; and 11. S.E. (s. 151), a period of five months imprisonment consecutive. THE OFFENCES COMMITTED BY M. AS A YOUNG PERSON
11
Spellacy, at paragraph 67, E.W., at paragraph 79.
[136] As pointed out earlier, four of the offences committed by M. occurred when he was a young person within the definition of the Young Offenders Act. That Act has been repealed. The applicable transitional provisions in the Youth Criminal Justice Act are sections 159(1), 160 and 161(1): 159(1) Subject to section 161, where, before the coming into force of this section, proceedings are commenced under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, in respect of an offence within the meaning of that Act alleged to have been committed by a person who was at the time of the offence a young person within the meaning of that Act, the proceedings and all related matters shall be dealt with in all respects as if this Act had not come into force. 160. Any person who, before the coming into force of this section, while he or she was a young person, committed an offence in respect of which no proceedings were commenced before the coming into force of this section shall be dealt with under this Act as if the offence occurred after the coming into force of this section, except that (a) paragraph 62(a) applies only if the offence is one set out in paragraph (a) of the definition "presumptive offence" in subsection 2(1) and the young person was at least sixteen years old at the time of its commission; (b) paragraph 110(2)(b) does not apply in respect of the offence; and (c) paragraph 42(2)(r) applies in respect of the offence only if the 70. young person consents to its application. 161. (1) A person referred to in section 159 who is found guilty of an offence or delinquency, other than a person convicted of an offence in ordinary court, as defined in subsection 2(1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, shall be sentenced under this Act, except that (a) paragraph 110(2)(b) does not apply in respect of the offence or
delinquency; and (b) paragraph 42(2)(r) applies in respect of the offence or delinquency only if the young person consents to its application. The provisions of this Act applicable to sentences imposed under section 42 apply in respect of the sentence.12 [137] As was also pointed out earlier, M. is now twenty-one years of age. Thus, if a period of imprisonment is imposed upon him for any of these offences, then section 89 of the Youth Criminal Justice Act applies: 89. (1) When a young person is twenty years old or older at the time the youth sentence is imposed on him or her under paragraph 42(2)(n), (o), (q) or (r), the young person shall, despite section 85, be committed to a provincial correctional facility for adults to serve the youth sentence. (2) If a young person is serving a youth sentence in a provincial correctional facility for adults pursuant to subsection (1), the youth justice court may, on application of the provincial director at any time after the young person begins to serve a portion of the youth sentence in a provincial correctional facility for adults, after giving the young person, the provincial director and representatives of the provincial and federal correctional systems an 71. opportunity to be heard, authorize the provincial director to direct that the young person serve the remainder of the youth sentence in a penitentiary if the court considers it to be in the best interests of the young person or in the public interest and if, at the time of the application, that remainder is two years or more. (3) If a young person is serving a youth sentence in a provincial correctional facility for adults or a penitentiary under subsection (1) or (2), the Prisons See R. v. M.D.B., [2003] N.W.T.J. 41 (C.A.) and R. v. W.T.W., [2003] O.J. No. 1560 (S.C.).
12
[138] As a result of these provisions, M. must be sentenced pursuant to the provisions of the Youth Criminal Justice Act and any period of custody imposed upon him must be served by him in a provincial correctional facility unless an order under subsection 89(2) is obtained (see R. v. W.(W.T.), [2003] O.J. No. 1560 (C.J.). [139] In R. v. D.L.C., [2003] N.J. No. 94, I had the opportunity to consider, at some length, the sentencing provisions contained in the Youth Criminal Justice Act. Without repeating everything said in that judgement, it is sufficient at this point to note that the Act encourages judges to impose non-custodial sentences. This may be seen as its most dominating feature and primary purpose (D.L.C., at
72. paragraph 2). [140] Included in the sentencing provisions contained in the Act is section 39. It sets out the only circumstances under which a youth court can impose a period of
and Reformatories Act and the Corrections and Conditional Release Act, and any other statute, regulation or rule applicable in respect of prisoners or offenders within the meaning of those Acts, statutes, regulations and rules, apply in respect of the young person except to the extent that they conflict with Part 6 (publication, records and information) of this Act, which Part continues to apply to the young person.
custody: 39(1) A youth justice court shall not commit a young person to custody under section 42 unless (a) the young person has committed a violent offence; (b) the young person has failed to comply with non-custodial sentences; (c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or (d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38. [141] Though it might be argued that all sexual offences against children are violent in nature (see for instance, R. v. E.S.A, [2003] A.J. No. 571 (P.C.), at paragraphs 26-31) this position was not put forward by either party in this case and that question does not have to be answered in this case because of my conclusion that subsection 39(1)(d) of the Act applies.
73. What Is An Exceptional Case? [142] The word exceptional is not defined in the Act. Therefore, the question is:
what is an exceptional case? I believe that its meaning, in the context of subsection 39(1)(d), is found within the subsection itself. In other words, an exceptional case is an indictable offence in which the aggravating factors are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38. [143] Section 38 of the Youth Criminal Justice Act states: 38(1) The purpose of sentencing under section 42 is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. (2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles: (a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (d) all available sanctions other than custody that are reasonable in the 74. circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and
(e) subject to paragraph (c), the sentence must (i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),
(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community. (3) In determining a youth sentence, the youth justice court shall take into account (a) the degree of participation by the young person in the commission of the offence; (b) the harm done to victims and whether it was intentional or reasonably foreseeable; (c) any reparation made by the young person to the victim or the community; (d) the time spent in detention by the young person as a result of the offence; (e) the previous findings of guilt of the young person; and (f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [144] In this case, a consideration of these factors causes me to conclude that a period of secure custody is appropriate. A non-custodial sentence is not a reasonable alternative, it would not be a just sanction, it would not contribute to the
75. long term protection of the public and it would not be proportionate. What then
should the length of it be? This requires, among other considerations (see 39(8) of the Act), a consideration of sentences imposed in the region for similar offences committed by similar young persons. OTHER YOUTH SENTENCING JUDGEMENTS [145] In R. v. B. (H.W.) (1987), 68 Nfld. & P.E.I.R. 195 (N.L.C.A.), the young offender was sentenced to a period of seven months secure custody and two years probation after being convicted of sexual assault. The offence involved the young offender and an adult forcing the complainant to participate in an act of sexual intercourse. The young offender was seventeen years of age. The Court of Appeal agreed with the Youth Court Judges conclusion that a period of secure custody was warranted: ...I can find no error on the part of the trial judge, on the facts and in the circumstances of this case, in sentencing the appellant to secure custody. The offence was indeed a serious one and, in my view, societys interests would not be properly served if there were no such order. The principle of specific deterrence must be a factor here, as must that of general deterrence (although it must be acknowledged that general deterrence as stated by this Court in R. v. C.J.L. (1986), 59 Nfld. & P.E.I.R. 76; 178 A.P.R. 76, is not a principal factor). [146] The Court of Appeal concluded however, that a period of seven months was
76.
excessive. The sentence was reduced to a period of four months secure custody. [147] In R. v. S. (H.S.), [1990] N.J. No. 204 (C.A.), the young offender was sentenced to a period of one year secure custody for a sexual assault he had committed upon his young niece. He had spent seven weeks in custody prior to sentence being imposed. The sexual assault occurred over a period of time and involved him placing his penis between the victims legs. In addition, he attempted penetration and succeeded to some extent. The Court of Appeal, on the basis of two errors in principle made by the Youth Court Judge, concluded that it had the jurisdiction to impose a sentence of its own. It imposed a sentence of seven months secure custody. [148] In R. v. A.P. (1991), 91 Nfld. & P.E.I.R. 41 (N.L.C.A.), the young offender was convicted of a sexual assault which involved forced sexual intercourse. He was fifteen years of age at the time of the commission of the offence and had a prior conviction for theft. The pre-sentence report was positive. The Youth Court Judge imposed a period of three months secure custody. This sentence was upheld on appeal. [149] In R. v. D. (L.M.) (1991), 97 Sask. R. 19 (C.A.), the young offender was convicted of sexual assault and placed upon probation for a period of two years by
77. the Youth Court. He was fifteen years of age and had no previous convictions. The offence involved him having sexual intercourse with a female who was unconscious at the time. The Saskatchewan Court of Appeal increased the sentence to a period of six months secure custody. In doing so, the Court of Appeal stated: The difficulty this case presents is that the accused has no previous record and from the pre-disposition report it seems there is little likelihood that the accused will re-offend and there is good reason to believe he will become a good and useful member of society. These factors were obviously paramount in the mind of the trial judge who was prepared to emphasize the aspect of personal deterrence in light of the positive information he had received about the accused. We share his desire not to impede the progress and development of the accused, but given the nature of the offence, the prevalence of sexual abuses both in this Province and in this particular community, we are all of the view that the message which must consistently be given is that such offences mandate a period of incarceration to show society will no longer tolerate such conduct and those who persist in abusing others in this way can expect severe consequences. [150] In R. v. D.K.L., [1997] P.E.I.J. No. 55 (C.A.), the offender, who was twenty-three years of age at the time of sentencing, plead guilty to a sexual assault that occurred when he was between the ages of twelve to fifteen. He was sentenced to a period of two months secure custody. On appeal, the sentence was
upheld. [151] In R. v. D.M. (1997), 162 Nfld. & P.E.I.R. 181 (N.L.C.A.), the young offender plead guilty to the offence of sexual assault. The offence involved non2003 CanLII 48100 (NL PC)
78. consensual sexual intercourse. He was sixteen years of age and had a prior record. He had exhibited suicidal tendencies while serving previous open custody dispositions. The Youth Court Judge sentenced him to a period of one year secure custody. This sentence was upheld by the Court of Appeal. It concluded, at page 190, that in all the circumstances of the case the one year of secured custody cannot be said to be inappropriately long. [152] In C.S.D. (1999), 174 Nfld. & P.E.I.R. 1 (N.L.C.A.), the young offender was convicted of two counts of sexual assault and sentenced to fifteen months secure custody. The assaults involved sexual intercourse. The Court of Appeal concluded that the sentence was inordinately high for a young offender without a record of prior criminal offences. The Court of Appeal varied the sentence to allow the young offender to complete his custodial sentence of 6 months in open custody. [153] In R. v. J.C.C., [2002] N.J. No. 279, I imposed a period of six months open
custody upon a young person that had committed five sexual offences on a school bus in relation to other students. [154] In R. v. T.K., [2003] O.J. No. 2877 (C.J.), the accused was convicted of an offence under section 151 of the Criminal Code. The trial judge described it as an act of forced intercourse. A sentence of two months open custody followed by a
79. supervision order of one month was imposed. [155] In R. v. E.S.A., [2003] A.J. No. 571 (P.C.), the young person was convicted of an offence contrary to section 151 of the Code involving a twelve year old girl. The young person was seventeen years of age and a friend of the victims brother. A deferred custody and supervision order of six months was imposed. AN APPLICATION OF THESE PRINCIPLES TO THIS CASE [156] Considering these precedents and the principles set out in the Youth Criminal Justice Act, I conclude that the following individual sentences are appropriate (for ease of reference, I have once again resorted to using the numbers set out earlier): 1. T.B. (s. 151), a period of six months custody, consecutive; 2. T.B. (s. 153(a)), a period of four months custody, consecutive;
3. T.B. (s. 153(b)), a period of two months custody, consecutive; and 4. T.B. (s. 153(a)), a period of two months custody, consecutive. [157] The total period of custody that would be applied on this basis would be fourteen months. In accordance with subsection 42(2)(n) of the Act and for the reasons set out in D.L.C. (see paragraphs 87-92), such a sentence would be
80. formulated so that two-thirds of it were served in custody and the remaining onethird under community supervision. THE TOTAL PERIOD OF IMPRISONMENT [158] The imposition of these individual sentences would result in M. being sentenced to a period of sixty-two months imprisonment. This would be far in excess of the types of sentences imposed in similar cases, cases which I am bound to follow (see R. v. Renouf (2001), 206 C.C.C. (3d) 67(N.L.C.A.). Therefore, these prospective sentences must be varied so as to reach a total sentence which is proportionate, appropriate and consistent. [159] As stated earlier, both counsel have suggested that a sentence of eighteen to twenty-four months imprisonment should be imposed. Though this is not the sentence I would have otherwise imposed and though the precedents I have cited
suggest a lengthier period of imprisonment is warranted, I am willing to accept this recommendation in this case because it was endorsed by the Crown as being correct. Obviously, the Court is not bound by the Crowns submission to it on sentence. However, it must be cautious in imposing a sentence greater than that requested by the Crown (see R. v. D.T.S., [2002] N.J. No. 3 (P.C.). Therefore, I hereby sentence M. to a period of two years imprisonment, less a single day. This is
81. to be achieved by reformulating the sentences imposed for each specific offence as follows: 1. T.B. (s. 151), one day concurrent; 2. T.B. (s. 153(a)), one day concurrent; 3. T.B. (s. 153(b)), one day concurrent; 4. T.B. (s. 153(a)), one day concurrent; 5. S.G. (s. 151), six months, less a single day, consecutive; 6. T.B. (s. 153(a)), six months, consecutive; 7. T.B. (s. 153(a)), six months, consecutive;
8. J.F. (s. 153(a)), eight months, concurrent; 9. S.E. (s. 151), six months, consecutive; 10. S.G. (s. 151), five months, concurrent; and 11. S.E. (s. 151), three months, concurrent. [160] The total period of imprisonment is therefore, two years less a single day. [161] As a result, one of the statutory conditions for the imposition of a conditional period of imprisonment has been met. The statutory requirements for the imposition
82. of such a sentence are set out in section 742.1 of the Criminal Code. It states: Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court (a) imposes a sentence of imprisonment of less than two years, and (b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3. [162] When will a conditional period of imprisonment be appropriate?
CONDITIONAL SENTENCES [163] In R. v. Proulx, [2000] 1 S.C.R. 61, the Supreme Court of Canada set out a two-stage test that is to be applied. The first stage involves a consideration of whether or not the statutory prerequisites exist, including a determination that serving the sentence in the community would not endanger the safety of the community. The second stage of analysis requires a determination of whether or not the sentence would be consistent with the fundamental principles of sentencing. Proulx clearly points out that there are no classes of offences which are exempt from conditional sentences. 83. [164] As regards the prerequisite involving the safety of the community, the Supreme Court of Canada held in Proulx, at paragraph sixty-eight, that "the focus of the analysis at this point should clearly be on the risk posed by the individual offender while serving his sentence in the community." The danger to the public is evaluated by reference to (1) the risk of re-offence, and (2) the gravity of the danger in the event of a re-offence. [165] In R. v. Knoblauch, [2000] 2 S.C.R. 780, the Court, at paragraph 27, stated that the risk of re-offence is to be assessed in light of the conditions attached to the sentence. Where an offender might pose some risk of endangering the safety of
the community, it is possible that the risk be reduced to a minimal one by the imposition of appropriate conditions in the sentence." [166] In R v. Wells, [2000] 1 S.C.R. 207, the Court held that at the second stage of analysis the court must undertake a comprehensive consideration of the principles of sentencing set out in sections 718-718.2 of the Criminal Code. [167] In R. v. L.F.W., [2000] 1 S.C.R. 132, the trial judge imposed a conditional period of imprisonment for sexual offences the accused committed upon his cousin [(1996), 146 Nfld. & P.E.I.R. 298]. A majority of the Newfoundland Court of Appeal upheld the sentence imposed [(1997), 155 Nfld. & P.E.I.R. 115]. On further
84. appeal to the Supreme Court of Canada, the judgement of the Court of Appeal was affirmed. Interestingly, and somewhat inexplicably, despite nine justices having heard the appeal in the Supreme Court, only eight rendered judgment. This led the Court to the curious position in which four of the justices decided to uphold the sentence and four concluded that a conditional period of imprisonment was inappropriate. Since the sentence was not overturned, it was affirmed by default. [168] Writing on behalf of the four justices that would have upheld the sentence,
Lamer, C.J.C., as he then was, stressed the principle of appellate deference in appeals of sentence (see paragraph 19). However, he also stated that were he the trial judge he "might well" have "imposed a sentence of incarceration" (at paragraph 25). [169] Madam Justice L'Heureux-Dube', writing on behalf of the four justices that concluded that a period of incarceration should have been imposed, concluded that a conditional sentence offended "the proportionality principle set out in s. 718.1 of the Criminal Code" (at paragraph 30). At paragraph 29, she wrote that: Courts have tended, even under the new sentencing principles adopted in Bill C-41 (now S.C. 1995, c. 22), to find that the principle of denunciation weighs particularly heavily in cases of offences perpetrated against children by adults in positions of trust and authority. See: R. v. Oliver (G.) (1997), 99 O.A.C. 234 (C.A.); R. v. Alfred (A.) (1998), 105 O.A.C. 373; 122 C.C.C. 85. (3d) 213 (C.A.); R. v. P.D., [1999] O.J. No. 3375; 124 O.A.C. 275 (C.A.); R. v. R.R.E., [1998] O.J. No. 2226 (Prov. Div.); R. v. P.M., [1999] O.J. No. 421 (Prov. Div.); R. v. I., [1998] O.J. No. 5713; 86 O.T.C. 283 (Gen. Div.); R. v. Cuthbert (D.A.) (1998), 101 B.C.A.C. 147; 164 W.A.C. 147 (C.A.). While the trial judge stated that he considered the principles of deterrence and denunciation in determining the sentence, in my view, the decision to impose a conditional sentence in this case indicates a serious failure to give appropriate weight to the objective of denunciation. [170] I conclude that M. does constitute a danger to the public. I am convinced that he is sexually attracted to young boys of certain age. Conditions imposed in a
conditional sentence order could lessen the chances of him committing another offence. However, the risk of a re-offence cannot, through the imposition of such conditions, be brought to such a minimal level that risking the gravity of the danger of such a re-offence would be acceptable. [171] In addition, I conclude that a conditional period of imprisonment would be inconsistent with the fundamental principles of sentencing and in particular with the principles of general deterrence and denunciation. I reach this conclusion having considered the number of victims involved, the nature of the sexual contact M. had with them and the position of authority and trust he held at the time. I believe that the comments of the Saskatchewan Court of Appeal in R. v. A.(D.), 2003 SKCA 68, in which the Court of appeal set aside a conditional period of imprisonment
86. imposed by the trial judge, apply equally well to this case: We are all of the view that the appeal must be allowed. A conditional sentence, although available, was not appropriate in the circumstances of this offence and this offender. The sentence does not comply with the fundamental principle set out in section 718.1 of the Criminal Code that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Nor does the sentence adequately achieve the fundamental objectives of denunciation of such offences or deterrence of others from committing sexual offences of this magnitude and effect as set
out in ss. 718(a) and (b). Furthermore, the sentence does not meet the requirement of s. 718.2(b) that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. SECTION 161 OF THE CRIMINAL CODE OF CANADA [172] Subsection 161(1) of the Code allows the Court to prohibit an offender who has committed an offence under section 151 from attending certain specified places. It states: (1) If an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence under section 151, 152, 155 or 159, subsection 160(2) or (3) or section 163.1, 170, 171, 172.1, 271, 272, 273 or 281, in respect of a person who is under the age of fourteen years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from (a) attending a public park or public swimming area where persons under the age of fourteen years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; 87. (b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of fourteen years; or (c) using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of fourteen years. [173] The prohibition can be imposed for life and it can be varied by subsequent
application of either the Crown or the offender: 161 (2) The prohibition may be for life or for any shorter duration that the court considers desirable and, in the case of a prohibition that is not for life, the prohibition begins on the later of (a) the date on which the order is made; and (b) where the offender is sentenced to a term of imprisonment, the date on which the offender is released from imprisonment for the offence, including release on parole, mandatory supervision or statutory release. (3) A court that makes an order of prohibition or, where the court is for any reason unable to act, another court of equivalent jurisdiction in the same province, may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed. [174] Therefore, if the court were to impose a lifetime order it could, upon application, subsequently reduce the time period involved or eliminate the prohibition altogether if appropriate. Setting a specific time period is a difficult proposition. If it is too short then the purpose of the legislation is defeated and children are placed at risk. One advantage of imposing a lengthy period is that if
88. circumstances change then a variation can be made. [175] The purpose of section 161 of the Code is to protect children from individuals like M. by limiting their contact with children and by preventing them from obtaining access to children through positions where children will be
vulnerable to them. M. should never be allowed to be in a position where he supervises children or in which he holds a position of trust or authority in relation to them. [176] Section 161 of the Code is not simply an addition to section 732.1(3)(h) of the Code. It is designed to increase the courts ability to protect children from those whom prey upon them. It should be given a liberal and broad interpretation consistent with this goal. The protection that such orders can afford to children makes section 161 a valuable sentencing option. [177] An example of what is in my view, an incorrect application of section 161 can be found in the judgement in R. v. Heward, [2001] B.C.J. No. 1176 (C.A.). In Heward, the offender was convicted of sexual assault. The trial judge imposed a period of six months imprisonment and a section 161 prohibition for a period of twenty years. The British Columbia Court of Appeal upheld the period of imprisonment but set aside the section 161 order. At paragraph nine of their
89. judgement, the Court explained its reasons for doing so as follows: Counsel for the appellant submitted, as well, that the trial judge erred in making an order under s. 161. He says that the term of 20 years was excessive. The counsel says that the order is inappropriate with respect to
[178] But what happens after the probation order expires? [179] In R. v. Robinson, [2000] O. J. No. 5161 (S.C.), the accused, a teacher, was convicted of sexually assaulting a young girl he met on a chat line. The nature of the offence was described by the trial judge as follows: The evidence of S.A., whom I will refer to as the victim for purposes of brevity, was 13 years old at the time and she described meeting the accused on a telephone chat line, subsequently getting together and meeting him at a restaurant in her home town. Things progressed to further visits which involved kissing, fondling and ultimately full blown intercourse overnight at her house, as well as on several other occasions at the apartment of the accused in London. These acts of sexual contact occurred over a period of five months and involved multiple acts of intercourse. [180] The trial judge imposed a period of imprisonment of one year. A request that it be served in the community was rejected. In addition, the trial judge declined to make an order pursuant to section 161 of the Code because of the effect it would have on the offenders occupation as a teacher. M. would not be negatively affected by a section 161 order in the same fashion. The Ontario Court of Appeal
90.
the situation in the case at bar. In my view the concerns of the court with respect to the appellants attraction to young girls may be adequately addressed by adding a provision to the probation order, in this case for the length of the order that the appellant have no contact, directly or indirectly with any female under the age of 16 years with the exception of members of his own family.
upheld the sentence imposed (see [2002] O.J. No. 2349). [181] In R. v. Moore, [1998] O. J. No. 2120 (C.A.), the offender was sentenced to a period of four years imprisonment for a sexual offence which is not specified in the judgement. The trial judge did not impose an order under section 161 of the Code. On appeal, the Ontario Court of Appeal imposed such an order for a period of fifteen years. [182] In R. v. Hirtle, [1999] N.S.J. No. 165 (C.A.), the offender was convicted of the offences of sexual assault and sexual touching. The trial judge imposed a period of imprisonment of fifteen months and a lifetime section 161 prohibition. The evidence at the sentence hearing indicated that though he had accepted treatment, he was a high risk to re-offend. The Court of Appeal varied the sentence to time served, however, they upheld the lifetime section 161 prohibition. [183] In R. v. P. W., [1998] O.J. No. 5431 (Prov. Div.), the accused was sentenced to a period of fourteen months imprisonment for two sexual assaults. He had two previous convictions. The trial judge imposed a section 161 prohibition for a period of ten years. [184] In R. v. E.L., [1999] O. J. No. 5433 (Gen Div.), the accused was sentenced to a period of five years imprisonment for five sexual offences he committed in relation to children. The accused had been employed as a rink attendant at the rink
91. where a number of the victims had participated in programs. The trial judge also imposed a lifetime section 161 prohibition. [185] Lifetime section 161 prohibitions were also imposed in R. v. Henry, [1999] O.J. No. 5095 (Prov. Div.), R. v. Lavictoire, [1995] O. J. No. 5241 (S.C.), R. v. R. W. K., [2001] A.J. No. 284 (Prov. Ct.), and R. v. Robinson, [1998] O.J. No. 6406 (Prov. Div.). [186] To allow M., at present, to be involved in any organization involving the supervision of children would place such children at an unacceptable level of risk. I conclude that this is an appropriate case for the imposition of an order under section 161 of the Code and considering the circumstances of the offences committed by him and his attraction to young boys, that it be for life. Therefore, an order under subsections 161(1)(a), (b) and (c) and 161(2)(b) of the Criminal Code shall issue, prohibiting M. for life from: attending a public park or public swimming area where persons under the age of fourteen years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground, or community centre, or seeking, obtaining, or continuing any employment whether or not the employment is renumerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of fourteen years, or using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with any person under the age of fourteen years.
92. A DNA ORDER [187] Sections 151 and 152 of the Criminal Code are primary designated offences. Therefore, subsection 487.051(a) of the Criminal Code applies to them. That subsection states: Subject to section 487.053, if a person is convicted, discharged under section 730 ...of a designated offence, the court (a) shall, subject to subsection (2), in the case of a primary designated offence, make an order in Form 5.03 authorizing the taking, from that person, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1)... [188] Subsection 487.051(2) states: The court is not required to make an order under paragraph (1)(a) if it is satisfied that the person or young person has established that, were the order made, the impact on the person's or young person's privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders. [189] DNA analysis has revolutionized the criminal justice system in Canada. It is a forensic technique without comparison. It enables the police to match suspects to offences with a degree of certainty that was unheard of only a few years ago and it has been a key component in the success of numerous applications made by the wrongfully convicted.
[190] Samples of bodily substances can be taken easily, safely and with little if any
93. impact upon an offenders sense of privacy or security. For instance, a sample of blood can be taken by simply pricking the surface of the skin of an offenders finger (see section 487.06(1) of the Criminal Code). There are compelling societal interests which favour a large and liberal interpretation of these provisions.13 [191] In R. v. Briggs (2001), 157 C.C.C. (3d) 38, the Ontario Court of Appeal, at paragraph 22, described the purpose of DNA collection, and the DNA data bank, in the following fashion: ...The DNA data bank will: (1) deter potential repeat offenders; (2) promote the safety of the community; (3) detect when a serial offender is at work; (4) assist in solving old crimes; (5) streamline investigations; and most importantly, (6) assist the innocent by early exclusion from investigative suspicion (or in exonerating those who have been wrongfully convicted). [192] I am satisfied that an order allowing the taking of bodily substances for DNA analysis would not be grossly disproportionate to the public interest in the
The providing of a bodily substance for DNA analysis is really a very minor matter. Our bodies contain a considerable amount of DNA (approximately six feet of it is squeezed into every cell) and approximately ninety percent of it is non-coding. Thus, we can spare to give up a small amount of it.
13
protection of society and the proper administration of justice. Accordingly, such an order in Form 5.03 is hereby issued. Prior to any samples being taken, M. is to be provided with an opportunity to contact counsel in accordance with section 10(b) of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982 and he is to
94. be given an opportunity to read a copy of the order allowing for the taking of the samples. VICTIM FINE SURCHARGE [193] Considering the length of the period of incarceration that has been imposed and M.s financial means, this is an appropriate case to waive the requirement that M. pay any victim fine surcharge. PROBATION [194] Upon the expiration of the period of incarceration that has been imposed, M. shall be subject to a probation order for a period of three years. The conditions of the probation order are as follows: 1. you are to keep the peace and be of good behaviour; 2. you are to appear before the court when required to do so by the court; 3. you are to report to a probation officer, in person, within 24 hours of the
expiration of this sentence and thereafter as required by your probation officer; 4. you are to notify your probation officer, in advance, of any change of name or address and promptly of any change of employment or occupation; 5. you are to attend and participate actively in any treatment programs 95.
risk/need assessment to which you have been referred by your probation officer and then, subject to the program directors acceptance, you are to participate actively and complete the treatment program or programs to which you have been referred; and 6. you are to refrain from being in the presence of any child fourteen years of age or under unless at all times you are accompanied by another person who is at least twenty-one years of age. CONCLUSION [195] For the reasons provided, M. is hereby sentenced to a period of two years incarceration less a single day.14 As has been seen, I set out the length of the sentence to be imposed prior to determining if it should be served in the community. I took that approach in this case because both counsel submitted that a period of imprisonment between 18 and 24 months should be imposed.
14
[196] Judgment accordingly. Appearances: Ms. B. Duffy for Her Majesty the Queen. Mr. M. Perry for M.

R v. J.L.M.

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1302A-00218 IN THE PROVINCIAL COURT OF NEWFOUNDLAND AND LABRADOR

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May 25-26, 2001

May 25-26, 2001

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Spellacy, at paragraph 67, E.W., at paragraph 79.

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